Home Military Page 4

Military

Quick Facts About a Military Law Specialist

Quick Facts About a Military Law Specialist

A military law specialist is an individual that is knowledgeable about all military laws, as they differ from civilian laws. For example, military service members that are accused of a crime may face military court rather than civilian court and the consequences can differ greatly. In addition, actions which are legal under civilian law may be illegal under military law.
A military law specialist may for example handle cases in which an individual is accused of disobeying a direct order. An individual may have disagreed with the desires of a superior and therefor, did not follow orders. That type of  case would require the services of a military law specialist, as those laws  do not apply to civilians.
A military law specialist must be familiar with both civilian and military laws in order to effectively handle cases for military members.
Military laws has more information on military law specialists.

Domestic Violence Crime and Victims Act of 2004

Domestic Violence Crime and Victims Act of 2004

What is the Domestic Violence Act?
The Domestic Violence Crime and Victims Act of 2004 is a federal criminal justice act which concentrates on offering legal protection and assistance to victims of crime, particularly those individuals who are stricken with bouts of domestic violence.
The Domestic Violence Crime and Victims Act of 2004 also expand the previously affirmed provision for trials without a jury and bring in new rules for trials that cause the death of a child or a vulnerable adult. Additionally, the Domestic Violence Crime and Victims Act permit bailiffs to use force to enter homes where suspected acts of domestic violence occur.
The Domestic Violence Crime and Victims Act of 2004 reformed numerous legal procedures, particularly police and court procedures that were seen as customary previous to the passing of the act.
Previous to the inclusion of the Domestic Violence Act, non-molestation orders under the previous acts provided a criminal sanction for non-compliance issues, with a maximum sentence of 5 years imprisonment. These punishments later extended to include same-sex couples and co-habiting couple on an equal footing with married couples under the newly-formed Domestic Violence Act. The previous act, known as the Family Law Act 1996, did not impose the same punishments or even recognize the presence of the illegal actions for same-sex couples and co-habiting couples.
In addition to the sanctions for non-molestation orders, the domestic violence act institute restraining orders, which effectively prevents the aggressor from approaching or doing anything specified in the particular constraint. The restraining order instituted in the Domestic Violence Act can be imposed upon the acquitted defendants or perpetrators of the violence. Restraining orders are imposed if the court system “considers it necessary to do so in order to protect an individual from harassment by the perpetrator.” The Domestic Violence Crime and Victims Act of 2004 also states that the Court of Appeal in allowing an appeal against conviction may also remit the matter to the Crown Court in considering a restraining order in respect of the otherwise successful appellant.
Court procedure was amended by the passing of the act to restrict the circumstances in which a trial can be stopped at the end of the prosecution case and before the defense states their case. The act also permits bailiffs to use force in order to enter homes; this permission overturned a century-old doctrine, which stated that an individual’s home is his own property attached with undeniable rights.

A Guide to the Army Reserves

A Guide to the Army Reserves

Army Reserves Defined:
The army reserves are a military reserve organization primarily composed of ordinary citizens of a country who enter a military role while maintaining a civilian career. The majority of individuals who are in the Army Reserves are not normally kept under arms; the primary role of a member of the Army Reserves is to be available to fight when a nation mobilizes their armed forces unit for a total war or to defend their country from invasion.
Army reserve forces are typically not considered part of a permanent military force. The existence of the unit allows a nation to reduce its peacetime military spending while maintaining a unit that is constantly prepared for distress and military action.
In a few countries, such as the United States and the United Kingdom for example, the members of the reserve forces are civilians who sharpen and maintain their military skills through training—typically mandated by the underlying government for one weekend a month. In other countries, such as Finland, Taiwan, South Korea, Israel, and Sweden; however, participation in the army reserves is mandatory for a number of years.
A typical military reserve force is held separately from a reserve formations, which is a group of military units and personnel not committed to a battle by their governing agent or commander so that they are available to fight and address unforeseen situations, exploit opportunities, and bolster defenses.
In countries where duty is not required (such as the United States), reserve members are typically former military members themselves who have reached the end of their enlistment or have resigned their commission. Members of the army reserves can also be comprised of civilians who undertake basic and specialized training in parallel with regular forces while retaining their ordinary civilian roles. In these instances, the army reserve members are deployed independently to make up for shortages in regular armed units.
In wartime, the army reserves are used to provide replacements for losses during combat; the member soft the reserve units are placed in-action units and formations. Furthermore, the reserves can also be used to form new units and formations to strengthen the regular military unit. In times of peace, the reserve members can be utilized for internal security operations and disaster relief.

A Guide to the Army Rangers

A Guide to the Army Rangers

What are Army Rangers?
In the United States, Army Rangers are prestigious and highly-skilled members of the United States Army. Army Rangers have served in recognized units of the Army Rangers or have graduated from the United States’ Ranger School.
The Army Rangers unit was first established in World War II when General George C Marshall authorized the creation of six modernized battalions of the rangers to employ the special units’ forces in wars in Korea, Vietnam, Iraq, Afghanistan, Panama, and Grenada.
Following the Vietnam War, the United States government determined that the U.S. Army needed an elite and rapidly deployable infantry. Following this declaration, the 2nd Ranger Battalion was constituted and in 1984 a 3rd battalion was formed and their regimental headquarters were created. Since this time, the unit has participated in numerous operations that revolved an assortment of methods and fundamental goals. Similar to other fighting units, Rangers in the United States are susceptible to the same forms of liability that govern other branches of the military. Furthermore, Rangers must also adhere to the legal implications and regulations instituted by various governing agents and authorities.
 
Military Law vs. Federal Law
The United States Department of Defense operates under Federal Law as per the guidelines expressed within the disbursement of a triune governmental oversight system, which allows for the United States Army rangers to exist under the jurisdiction of the Executive branch of the government; this results in the appointment of the President of the United States as the Commander in Chief of the entirety of the Armed Forces. However, Military Law – a legal field classified as a subgenre of Federal Law – typically addresses the activity and behavior of military personnel; this can include:
Absent Without Leave (AWOL): The unlawful desertion of a service member with regard to their respective commitment to the United States Army rangers; individuals deemed to have abandoned positions may be tried by military court and subsequently court martialed.
Martial Law: Martial Law is the instatement of Military rule over specific jurisdictions within a country or nation; in many cases with regard to the implementation of heightened security measures, the United States Army rangers may be appointed in the event that the acting body of civil law enforcement is unable to maintain sufficient order.
Judge Advocate General (JAG Corps): The JAG Corps – or Judge Advocate General Corps – are classified as the acting legal body within the United states Army rangers. JAG Corps not only oversee the court martial process, but also are responsible for upholding the maintenance of the protocols and parameters expressed within the UCMJ; in many cases, the legal issues addressed by the acting JAG Corps are specific – these include: war crimes, treason, sedition, refusal to obey orders, undue violence, and offenses directed against military personnel.
 
Punitive Recourse and the United States Army rangers
The procedures and legislative process implicit within the investigation – and prospective lawsuit – with regard to issues involving Military Law and the United States Army rangers may vary on an individual, case-by-case basis.
A court martial exists in the event that an offense is deemed to be under the jurisdiction of both military court judicial review, as well as military court oversight; court martials may mirror the legal process that exists within civil court, yet military personnel – service members and prisoners of war – are the only individuals able to be subject to such proceedings. Matters involving United States Army rangers service members may constitute overlapping legal fields with regard to the corresponding legal proceeding. Furthermore, in the event that an individual is brought before a military court with regard to matters concerning the United States Army rangers, service members should be made aware that military law – as well as the Uniform Code of Military Justice – varies on a locational basis.

Analysis manual 1969

Analysis manual 1969

DEPARTMENT OF THE ARMY PAMPHLET NO. 27-2

ANALYSIS OF CONTENTS
MANUAL FOR
COURTS-MARTIAL, UNITED STATES
1969, REVISED EDITION

HEADQUARTERS, DEPARTMENT OF THE ARMY
JULY 1970

PREFACE

This analysis of contents contains paragraph by paragraph analysis of the changes made in the Manual for Courts-Martial 1969 and the subse- quent changes in the Manual for Courts-Martial 1969 (Revised edition).
This analysis, therefore, replaces the unofficial draft analysis of con- tents, Manual for Courts-Manual United States 1968, and the draft analy- sis of contents for the 1969 revised edition, both of which were printed in limited quantities and distributed on a special pin point distribu- tion basis in 1968 and 1969. This combined analysis of content does not purport to be an official publication, but is merely an unofficial aid for determining the thoughts of the drafters of both manuals concerning the meaning and effect of the changes.
A. MCM, 1969

HISTORY. On 7 December 1965, the Judge Advocates Generd of the Army, Navy, and Air Force agreed to appoint a working group to prepare a draft of a new Manual for Courts-Martial. The mission assigned this group was to make necessary and desirable revisions occasioned by decisions of the Court of Military Appeals and other established and applicable Federal authority as needed to clarify areas where the services had experienced difficulty or which might be difficult for line officers to understand in performing their judicial and administrative fuactions. Appointed to this working group as senior representatives of the services were Colonel Bruce C. Babbitt of the United States Army, Captain Carlton F. Alm of the United States Navy, and Colonel Harry Ehrlich of the United States Air Force. The Army agreed to assume the administrative responsibility for the preparation and staffing of this proposed draft. Accordingly, Lieutenant Colonel George 0. Taylor, Jr. and Major Matthew B. O’Donnell, Jr. were detailed to assist the committee as advisors and administrators. In July 1966, Major O’Donnell was reassigned and replaced by Major Jack G. McKay who assisted the working group for almost eleven months.
The first meeting of the working group took place on 27 December 1965. The procedure followed by the working group was to forward the proposed changes to the Judge Advocates General by indi- vidual chapters. After consideration of informal comments on these chapters, they were again pre- sented for the approval of the Judge Advocates General. Thereafter, the Judge Advocates General ap- proved each chapter and appendix individually. When these approvals included reservations they were considered and disposed of by the working group. Subsequently, the textual material was prepared in final form and staffed as an Executive Order for signature of the President of the United States.
During the preparation of this pamphlet, the working group received suggestions, assistance, and contributions from numerous sources. It is impossible to acknowledge all of these many sources. How-ever, it is felt appropriate to express particular appreciation to those that made the most significant contributions. These contributors were The Judge Advocate’s General School, United States Ar.my; Colo- nel V. Homer Drissel, United Sbks Army; Captain Murl A. Larkin, United States Navy; Colonel Myron L. Birnbaum, United States Air Force ;and Lieutenant Colonel William P. Tyson . Jr., United States Army. Special appreciation is expressed to Colonel Gilbert G. Ackroyd, United States Army. C,olo- nel Ackroyd submitted a proposed draft for Chapter XXVII, Rules of Evidence, which reflected a tre- mendous amount of work and which significantly eased the burden of the working group. The majority of this chapter as finally agreed upon was taken from Colonel Ackroyd’s draft.
SCOPE AND FORMAT. This analysis discusses the changes from the 1951 Manual which were made in this pamphlet by commenting on each chapter and appendix individually. It was compiled by the administrators provided the working group by the Army from notes made by these officers during the course of the group discussions.
The particular paragraphs or subparagraphs of the Manual which are discussed herein are usually designated on the left of each page. Unnumbered paragraphs of the Manual within numbered para-graphs or subparagraphs are referred to as “paragraphs,” for example, “See the second paragraph of 73c(l).” A citation such as 73c(l) without further identification refers to a subparagraph in the text of the Manual itself.
GENERAL CHANGES. Numerous minor editorial changes have been made which are not dis-cussed individually in this analysis. Some of these were made for grammatical reasons. Others were made in order to make the language and terminology of the Manual conform with the language and terminol- ogy used in the Uniform Code of Military Justice as codified in 1956 and the definitions contained in 10
U.S.C. 5 101 (1964). For example, when appropriate, “enlisted person” was changed to “enlisted mem- ber,” “appointed” was changed to “detailed,” “appointing” was changed to “convening,” and the use of “officer,” “commissioned officer,” or “warrant officer”” was modified to conform with 10 U.S.C. $101 (14)-
(16) (1964).

DEFINITIONS. All readers of the Manual should be aware of the meanings usually intended by certain terms which are used throughout. These are set out below.
AGO 20081A
Pam 27-2
“Secretary concerned” includes the Secretaries as listed in 10 U.S.C. 5 101(8) (1964). See 5a. “Secretary of a Department” includes the various Secretaries included in the definition of “Secre- tary concerned” plus the Secretary of Defense. “Open session” means a session at which the military judge and/or court members, counsel, and the accused, and, if any, reporters are present. Of course, when appropriate, a witness, interpreter, or other
party assisting the court may also be present. “Closed session” means a session at which only the court members are present. “Open court” means that spectators are permitted. “Closed court” means that spectators are excluded. “Out of the presence of the court members” or “out of the hearing of the court members” refers
to an out-of-court hearing or in-court cohference as appropriate in the situation involved. See appen- dix 8a.
AGO 20081A
Pam 27-2
B. MCM, 1969 (Rev.)

HISTORY. On 11September 1968, the President promulgated Executive Order No. 11430, the Manual for Courts-Martial, United States, 1969 to be effective 1January 1969. Six weeks later, on 24 October 1968, he signed the Military Justice Act into law. Except for two provisions which were effec- tive immediately, the Act went into effect on 1August 1969. The Manual for Courts-Martial 1969 had to be revised prior to that date to implement the Act. The revised manual was titled Manual for Courts- Martial, United States, 1969, Revised edition.
The Department of Defense, by a memorandum signed by the Deputy Secretary of Defense on 16 October 1968, designated the Secretary of the Army as Executive Agent for DOD with overall respon- sibility for preparing and staffing within the Executive Branch an Executive Order amending the Manual to conform to the new Act which the President was expected to sign shortly. The memorandum stated that the proposed Executive Order would be submitted to the Secretary of Defense no later than 15 February 1969.
By memorandum dated 21 October 1968, the Secretary of the Army delegated his authority as Executive Agent for DOD to the Judge Advocate General of the Army and specifically authorized for- mation of an Ad Hoc Joint Department of Defense Committee for the accomplishment of this mission.
The Judge Advocate General determined that an ad hoc cornittee was the ~mc~steffective way to draft the proposed Executive Order and such a committee was formed during the week of 21-25 October 1968.
The Army members were-
Col Dale R. Booth-USA Judiciary, Chairman
LTC James A. Mounts-Military Justice Div., OTJAG
Maj Philip Suarez-Asst. Exec., OTJAG
The Navy members were-
Capt Charles McDowell-Admin. Law Div., OJAG
Cdr Walter Andry-Mil. Justice Div., OJAG
Lt Homer E. Moyer-Mil. Justice Div., OJAG
The Air Force members were-
Col Carl Goldschlager-Chairman B/R OTJAG AF
LTC Jean Morris-Mil. Justice Div., OTJAG AF
Maj Frank Moniz-Appellate Gov’t Div., OTJAG AF
SCOPE. The revision of the Manual for Courts-Martial, United States, 1969 was confined, with ex- ception of the input of the Standing Committee, to changes required by the “Military Justice Act of 1968.” Numerous minor editorial changes required by the Act and a few grammatical changes have been made which are not discussed individually in this analysis. The term “Law Officer” has been re- placed by “Military Judge” wherever it appears in the text of the January Manual. “Convening” has been replaced by “Assembling” when referring to the formal commencement of proceedings after the gathering of the court whether the court includes members or the military judge alone. “Court Mem-bers” has replaced “Court” when appropriate to emphasize the duality of the court composed of mem- bers and military judge. The term “court” has been used when referring to the court composed of the military judge alone in recognition of his new and expanded role, although its use in the generic sense has been retained when that meaning of the term is evident from the context. The Committee found no acceptable abbreviation or “key” that would distinguish the special court-martial with a military judge detailed from the special court-martial composed of members only. It was necessary to add the words “without a military judge” to “special courts-martial” to distinguish between these two types of special courts-martial.
AGO 20081A

Pam 27-2
In addition, a Standing Committee was appointed within the various services to keep the manual up- dated and to provide necessary input to the Ad Hoc Committee which was beyond the scope of the Mil-itary Justice Act itself. This committee was composed of-
John C. Wasson, Colonel, USAF.
William J. Chilcoat, Colonel, JAGC, USA.
Joseph E. Ross, Captain, JAGC, USN.
Myron G. Sugarman, Captain, JAGC, USA, Recorder.
The Committee provided draft changes to paragraphs 75d, 762, (I), 140b 144d, 145b, 145c, 149b(l), 153a, 153b(l), of the MCM, 1969 (Rev.).
AGO 20081A

Pam 27-2

PAMPHLET HEADQUARTERS DEPARTMENT OF THE ARMY
NO. 27-2 WASHINGTON,D. C., 28 July 1970
ANALYSIS OF CONTENTS, MANUAL FOR COURTS-MARTIAL,
UNITED STATES, 1969 (REVISED EDITION)

Page

CHAPTER 1 ————————————————————1-1

2 …………………………………………………. 2-1

3 …………………………………………………… 3-1

4 4-1

5 …………………………………………………… 5-1

6 …………………………………………………… 6-1

7 ————–_———————————————7-1

8 —–~—–_–_———————————————8-1

9 —————-_——————————————-9-1

10 10-1

11 …………………………………………………… 11-1

12 12-1

13 ——————-_—————————————-13-1

14 —————_—-_—————————————14-1

15 15-1

16 16-1

17 ————————————————————17-1

18 ————————————————————18-1

19 …………………………………………………… 19-1

20 —–_——————————————————20-1

21 21-1

22 …………………………………………………… 22-1

23 ——-_—————————————————-28-1

24 24-1

25 25-1

26 26-1

27 …………………………………………………… 27-1

28 ——————————————-_—————-28-1

29 …………………………………………………… 29-1

General Discussion of Changes in Appendices -.—————————-
A-i APPENDIX1 a1-1 2 A2-1 3 ——A3-1 4 A4-1 5 ……………………………………………………
A5-1 6 ———–_————————————————A6-1 7 A7-1 11 ——————————–.—————————
8 …………………………………………………… A8-1
9 ———————————_————————–A9-1

10 …………………………………………………… A10-1
a11-1 12 A12-1 13 A13-1

14 …………………………………………………… A14-1

15 …………………………… ——-_———A15-1

16 …………………………………………………… A16-1

17 …………………………………………………… A17-1

AGO 20081A
Pam 27-2
AGO 20081A
Pam 27-2

Paragraph 4a
CHAPTER 2

CLASSIFICATION-COMPOSITION OF COURTS-MARTIAL
General. Recognizes that general and special courts may be constituted of the Military Judge (MJ) alone subject to the requirements of Art. 16. As changed, it no longer relates only to the number of members so that title and position of the paragraph was changed from “b. Number of Members.” to “a. General.” A request for trial by the MJ alone will nor- mally be made after a case has been referred to a court composed of an MJ and members. Art. 16 allows an accused to request trial by the MJ alone up to assembly of the court, and Art. 18 requires that a capital case be referred as non-capital before an MJ alone has jurisdiction to try it. Thus, the articles contemplate that the accused will decide whether he wishes to request trial by the MJ alone after referral, at which time he may compare trial by the MJ alone with trial by that MJ and members. This is the most orderly procedure for processing requests for trial by the MJ alone since referral to a specified court constitutes proof for the record that the accused knew the identity of the MJ prior to making his request and avoids the possible appearance of improper pressure upon the accused to request trial by the MJ alone.
Who may serve as members. This paragraph deals with eligibility of members of the armed forces to serve on courts-martial. It was formerly designated 4a. See notes to 4a.
In the third sentence of the first paragraph, “who is not a member of the same unit as the accused” was inserted to conform with Art. 25(c) (1). It is provided that an enlisted accused may request enlisted members on the court-martial at any time prior to assembly even though Art. 25(c) (1) provides that the right of an enlisted accused to request enlisted members may lapse at the “conclusion of a session called by the military judge under . . . Art. 39(a) prior to trial.” The right to request trial by the Military Judge alone is not lost until assembly of the court, so the accused has the right to request enlisted members up to that time. Requests for enlisted members are rare and the position taken in the manual will not substan- tially increase administrative burdens.
In the first sentence of the third paragraph, “or other” was added after “new.” This covers situations where the original proceedings were declared invalid for lack of jurisdiction or for failure to allege an offense. See 92b.
In the fourth paragraph, the definition of “a unit” of the Marine Corps is new. In the first sentence of the fifth paragraph, “suspension from rank” was deleted as a reason for being ineligible to sit as a member of a court-martial. “Suspension from rank” was deleted as a punishment. See comments on 126i.
Rank of members. No substantive changes were made. However, the paragraphing was changed, and the last sentence of the second paragraph is a transposition of the second paragraph in MCM, 1951.
4c
AGO 20081A

Pam 27-2
Paragraph 4d Qualification of members. The aeaond paraxaph, whi’& euggesbed the detail of a lawyer as a member of a special court-martial in complicated
cases, was deleted to avoid placing presidential approval on a practice that
led to difficulties in the past. See United States v. Sears, 6 USCMA 661, 20
CMR 377 (1956). In appropriate cases an MJ should be detailed to the
court.
Military Judge of a court-martial. This paragraph was changed to provide for MJ detailed to SPCM as well as GCM. It also incorporates the expanded designation and qualification provisions of amended Art. 26.
In the second sentence of the last paragraph, after “a rehearing (92a) or a new trial (109, 110),” the words, “or other (92b) trial”, were added. See comments to 4a and paragraph 92b.
The term “general court-martial” was deleted from the first sentence since an MJ may be detailed to a special as well as a general court-martial.
.Detail of Military Judges and members from other armed forces- General policy. The first and second sentences were transposed. The first sentence now allows a convening authority to detail as military judge any qualified officer who is available to him, not just qualified officers under his command.
In the second sentence “ordinarily are” was substituted for “should be” to prevent the establishment of a policy that members of a court-mar- tial be of the same armed force as the accused. In the third sentence, “when” was substituted for “whenever it is necessary to convene” to avoid this limitation in the detailing of members to a court-martial who are not of the same armed force as the accused.
The effect of this change with changes in 4g(2), discussed below, is that the detail of members of armed forces different from that of the accused is at the discretion of the convening authority when he is properly authorized to utilize them, except for the limitation provided when they would constitute a majority.
Joint command or joint task force. This title was substituted for “Appointment of members and law officers from within a joint command or joi~t task force,” and this subparagraph was reworded so that the convening authorities to whom it applies may detail as members of a court-martial persons who are available to them as well as members of their commands. The former second sentence was deleted to avoid possible conflict with 4g (1).
Consideration was given to substituting “joint force” for “joint com- mand.” This substitution was not made as the terms “joint command,” and “joint task force,” are used in a generic sense and the term “joint com-mand” includes a “joint force.” “Joint command” is not defined in the Dictionary of United States Army Terms, Army Regulation 320-5 (23 April 1965), as changed by Change No. 2 (1Feb 1966), or in the Diction- ary of United States Military Terms for Joint Usage, JCS Pub. 1 (1 Jan 1966). However, the term “joint force” is presently defined in each at page 220 and page 103, respectively, as follows :
A general term applied to a force which is composed of significant elements of the Army, the Navy or the Marine Corps and the Air Force, or any two of these Services, operating under a single com-
AGO 20081A

Paragraph mander authorized to exercise unified command or operational control over such joint forces. This essentially is the sense in which “joint command” is used.
All other Convening Authorities. This title was substituted for “Ap-pointment from commands of other armed forces.” The requirement of concurrence of the Judge Advocates General concerned was substituted for concurrences of the Secretaries concerned. The example of a Navy law specialist being appointed as law officer in the trial of an airman was deleted because under 4g(l) this can now be accomplished without the secretarial authorization. This subparagraph was specifically made subject to 4g(l).
AGO 20081A

Paragraph
5a
CHAPTER 3
COURTS-MARTIAL

Convening authorities. In subparagraph (1)the definition of “Secre- tary concerned” was added.
In the second sentence of subparagraph (3), “who is superior in rank of that accuser or, if in the same chain of command, who is superior in command to that accuser” was inserted. Therefore, “another competent convening authority” must be senior in rank to the accuser if they are not in the same chain of command, but only senior in command if they are in the same chain of command. See United States v. La Grange, 1 USCMA 342, 3 CMR 76 (1952) where it was held that an officer junior to the accuser and one not in normal chain of command did not have authority to appoint the court-martial because of Article 22(b). In United States v. Haygood, 12 USCMA 481, 482, 31 CMR 67, 68 (1961), the Court wrote in reference to the words “superior competent authority” in Article 22(b) as follows: “. . . we leave for future resolution the question whether that phrase embraces only those officers who are senior in both rank and com- mand.”
In subparagraph (5),the addition of the exception to the general rule against delegation was inserted as Article 140 permits the President to delegate any authority vested in him under the Code.
Special courts-martial. In subparagraph (I), the first sentence was reworded and made to include “any other commanding officer empowered by the Secretary concerned” as a person who can convene a special court- martial. In the second sentence, “Coast Guard” was deleted as the Coast Guard does not now have an “officer in charge of a command” who may convene a special court-martial.
Summary courts-martial. Changes analogous to those in 5b(l) were made.
Detail of trial counsel, defense counsel, assistants in general. The second and third sentences of the first paragraph are new. The second requires detailed counsel to be commissioned officers. See United States v. Long, 5 USCMA 572, 18 CMR 196 (1955) ; United States v. Goodson, 1 USCMA 298, 3 CMR 32 (1952). The third sentence points out that the accused may be represented by individual counsel.
The last paragraph was reworded, and its application broadened to allow any convening authority to detail as counsel any qualified officer re- gardless of armed force with the concurrence of the appropriate command- ing officer. This sentence had applied only to commanding officers of joint commands or joint task forces, and limited them to their own commands when detailing an officer of another armed force as counsel.
Qualification of counsel of general courts-martial. In the second para- graph, the definition of a “judge advocate of the Army” and a “judge 6b
AGO 20081A

Pam 27-2
Paragraph advocate of the Air Force” was changed to conform witH the language in 10 U.S.C. g 3072 (1964) and 10 U.S.C. 5 8067(g) (1964), respectively. The
definition of a “Judge Advocate of the Navy” was added pursuant to PL 90-179,lO U.S.C. 5148.
Qualification of counsel of Special Courts-Martial. This paragraph in- corporates the counsel requirements of Art. 27. An accused must be offered representation by counsel qualified in the sense of Art. 27 (b) prior to trial. There is no requirement that this offer be made prior to the issuance of the convening order. Non-lawyer counsel may be detailed initially and qualified counsel subsequently added in the event the accused access the offer of such counsel. Conversely, qualified counsel may be detailed, and if the accused declines representation by qualified counsel, such counsel need not be present at trial, subject to the restrictions of 15b and 61f.
The “physical conditions or military exigencies” exception has been narrowly defined (1) to implement Congressional intent and (2) to con- form it with the analogous provision of 4c. The discussion of “physical conditions or military exigencies” parallels that given to the same phrase in paragraph 4c of the MCM, 1969 with the additional requirement that the convening authority explain why trial had to be held at that time and place. The legislative history of 4c was considered in drafting this paragraph of the Manual. See page 8, Senate report. The statement that counsel could not be obtained must be made prior to trial and appended to the record of trial as an appellate exhibit. This prevents unnecessary delay and realisti- cally implements Congressional intent.
The third sentence of the third paragraph is new and provides that if the assistant trial counsel has legal qualifications, the assistant defense counsel must have equal qualifications.
Qualification of assistant trial counsel and assistant defense counsel.
The paragraph was generally rewritten. The second and third sentences of the first paragraph of MCM, 1951 were deleted in view of the changes in 45 and 47 concerning the duties of assistant trial counsel and assistant de- fense counsel. This removes the implication that an assistant counsel who is a non-lawyer can participate in a trial by general court-martial if the principal counsel is present.
In the second paragraph, words were deleted which limited the inquiry into the qualifications of individual defense counsel to those cases in which the accused did not desire the services of the regularly detailed counsel, as this inquiry should also be made when the accused desires the services of the regularly detailed defense counsel.
Detail or employment of reporters and interpreters. The last sentence of the first paragraph is new, and provides that no person may act as reporter or interpreter in any case in which he is an accuser. United States
v. Martinez, 11USCMA 224, 29 CMR 40 (1960) ; United States v. Moeller, 8 USCMA 275,24 CMR 85 (1957).
As to the oath for the reporter, the specific reference to 114 was changed to Chapter XXII generally in view of the complete statutory change as to oaths found in the amended Art. 42(a).
AGO 20081A

CHAPTER 4

JURISDICTION OF COURTS-MARTIAL
Paragraph 8 Sources, nature, and requisites. The third paragraph, which dealt with the scope of review of courts-martial by civil courts, was deleted as inappropriate; also it was probably dated by Burns v. Wilson, 346 U.S. 137 (1953). See paragraph 108.
Jurisdiction as to persons. The first sentence of the first paragraph was reworded, an,d a reference to the statute providing for courts-martial jurisdiction over patients in the Army and Navy General Hospital at Hot Springs, Arkansas was deleted as this hospital was deeded to Arkansas. The last sentence of the first paragraph is new. As for the proposition that civilians cannot be tried under this article in peacetime, see McElroy
v. Guagliardo, 361 U.S. 281 (1960) ; Grisham v. Hagan, 361 U.S. 278 (1960) ;Kinsella v. Singleton, 361 U.S. 234 (1960) ; Reid v. Covert, 354
U.S. 1(1957). The target of this sentence was carefully limited to Article 2(11) ; and it does not relate to the extent of jurisdiction over civilians relative to the law of war under Article 18.
llb Termination of jurisdiction. Exceptions. The last sentence of the first exception is new and was substituted for a sentence which required Secre- tarial consent before exercising jurisdiction under Article 3(a). This re- quirement was because of adverse publicity which could possibly flow from a trial of a civilian. See page 11, Legal and Legislative Basis, Manual for Courts-Martial, United States, 1951, and Army Reg. 22-110 (21 Sep. 1955). The requirement of Secretarial consent was deleted as civilians cannot be tried under Article 3(a). Toth v. Quarles, 350 U.S. 11(1955). The new sentence recognizes that Article 3 (a) retains vitality in certain cases, for example, where the accused has reenlisted. United States v. Winton, 15 USCMA 222, 35 CMR 194 (1965) ; United States v. Gallagher,7 USCMA, 506,22 CMR 296 (1957).
The third exception was changed to conform to the language of Article 3(b). It was not the legislative intent that a person be subject to the Code during the interval between his fraudulent discharge and his apprehension. Both the House and Senate reports on the Code provide as follows :
“Subdivision (B) [of Article 31 is the statutory expression of the law as set out in the Manual for Courts-Martial, paragraph 10, and Naval Courts and Boards, section 334. It differs from a similar provi- sion in Article 5 (a) of the proposed amendments of the Articles for the Government of the Navy in that it provides that a person who obtains a fraudulent discharge is not subject to this code for offenses committed during the period between the date of the fraudulent dis- charge and subsequent apprehension for trial by military authorities.”
(S. Rep. No. 486, 71st Cong., 1st Sess. 8 (1949) ;H. R. Rep. No. 491, 81st Cong., 1st Sess. 11-12 (1949) ).
AGO 20081A

Pam 27-2
llc
lld 12

See also Hearings on HR 2498 before a Subcommittee of the Commit- tee on Armed Services, House of Representatives, 81st Cong., 1st Sess. 85-86 (1949).
The third sentence of the fifth exception was deleted. See United States v. Ginyard. 16 USCMA 512,37 CMR 132 (1967).
The fourth sentence of the fifth exception, which stated in effect that a member discharged in a foreign country was amenable to trial for offenses committed before his discharge if his status as a person subject to the Code was not interrupted, was deleted. See McElroy v. Guagliardo, 361 U.S. 281 (1960); Grisham v. Hagan, 361 U.S. 278 (1960); Kinsellu
v. Singleton, 361 U.S. 234 (1960) ;Reid v. Covert, 354 U.S. 1 (1957).
The last sentence of the fifth exception was made to apply to any “discharged prisoner in the custody of an armed force” by deleting the word “dishonorably.”
Paragraph was changed to correct the statement that trial com-mences in the accused’s presence “by arraignment.”
Trial may commence with an Art. 39(a) session held prior to assem bly without arraignment. Arraignment is retained as the time subsequent to which the accused’s voluntary absence does not terminate the jurisdic- tion of the court.
Eflect of termination of term of service. The next to the last sentence is new. CM 384814, Mansbarger, 20 CMR 449 (1955).
Exclusive and nonexclusive jurisdiction. The last sentence of the first paragraph was deleted as it was contrary to various status of forces agree- ments.
The third paragraph was revised in light of Wilson v. Girard, 354
U.S. 524,529 (1957).
Reciprocal jurisdiction. The last sentence of the first paragraph was added to provide for the same delegation of authority to the Secretary of Defense as in Exec. Order No. 10428, 18 Fed. Reg. 408 (1953). See United States v. Hooper, 5 USCMA 391, 18 CMR 15 (1955), for the validity of this delegation.
Added last paragraph reflects jurisdictional limitations imposed by Art. 18 on a GCM constituted by an MJ alone. See U.S. v. Jackson, 390
U.S. 570.
Punishments. The first part of the second sentence was deleted to remove the inference that a special court-martial may adjudge a bad-con- duct discharge only is approved by a general court-martial convening authority or other appellate authority. The second part of this sentence was revised to require a “verbatim” record. Article 19 requires only a “complete” record. In MCM, 1951, 15b and 83a were inconsistent. While the Court recognized that Article 19 does not require a “verbatim” record, it chose the verbatim requirement of 83a, MCM, 1951, over the less strin- gent requirement of 15b, MCM, 1951. United States v. Whitman, 3 USCMA 179, 11CMR 179 (1953). Thus, the use of “verbatim” does not require a change in present practice and removes the inconsistency with 83a. In United States v. Nelson, 3 USCMA 482, 486, 13 CMR 38, 42
(1953), after the Court accepted the definition of verbatim as being
“word for word; in the same words,” it then stated that it would apply
this definition sensibly as “a strict application would transform a com-
AGO 20081A

Paragraph monsense provision into an impossible requirement.” The Court applied the test that “if the transcript is sufficiently complete to present all mate- rial evidence bearing on all issues, minimal standards have been met and we will not reverse.” Nelson was cited by the Court with approval when it applied this test in United States v.Donati, 14 USCMA 235, 242, 34 CMR 15,22 (1963).
Tiivo additional requirements before a BCD can lawfully be adjudged by an SPCM were imposed by the new Act. 19:
(1) Counsel qualified in the sense of Art. 27(b) must be detailed, and

(2) An MJ must be detailed to the court unless one cannot be ob- tained due to physical conditions and military exigencies. It is not enough that the MJ be detailed, that is, that he be listed on the convening order. He must be present at trial; an accused may not waive or decline the presence of an MJ. The meaning of the phrase “physical conditions and military exigencies” is discussed in the notes to 6c. If the convening authority intends that a BCD be authorized and an MJ is not present, the convening authority must have, attempted prior to trail, to obtain an MJ and failed. In such a case, a statement must be completed explaining that such an attempt to obtain an MJ was made but that an MJ could not be obtained. It must also state what reasons required trial to be held at that time and at that place, despite the absence of an MJ. This statement must be presented at trial as an appellate exhibit and it is subject to review. If an MJ is not present and such a statement is not furnished, the president of the SPCM should know that a BCD is not authorized and his instruc- tions to the court on maximum punishment will not include a BCD. More- over, the case may be referred initially as a non-BCD SPCM. See 33j. If the requirements of Art. 19 are not met, a BCD may not be adjudged even though it might be otherwise authorized. See Senate report, pp 5 and 6.
Jurisdiction of Summary Courts-Martial-Persons and Offenses. Changed to incorporate the right, now provided by Art. 20, of a person to object to trial by summary court-martial, even after he has refused non- judicial punishment. A cross reference to paragraph 132 was added for completeness.
Punishments. The second sentence of the first paragraph was changed and conformed in substance to Exec. Order No. 11081, 28 Fed. Reg. 945 (1963), which amended paragraph 16b by substituting “enlisted persons” for “noncommissioned or petty officers.”
The last paragraph was deleted as the power of a summary courts- martial to adjudge a reprimand or admonition is adequately covered in 126f.
AGO 20081A
CHAPTER 5

APPREHENSION AND RESTRAINT
Paragraph 17 Scope. A reference to correctional custody under the revised Article 15 was added.
Basic considerations. The word “restriction” was added in two places in the second sentence for clarity and to foreclose the possibility of confu- sion.
The former last two sentences were deleted. These sentences dealt with the effective date of forfeitures and the convening authority’s action in regard thereto. This material is covered elsewhere in the MCM in detail and is not related to the other subject matter of this subparagraph, that is, restraint.
Who my apprehend. The first paragraph was amended to authorize criminal investigators to apprehend persons subject to the Code.
Status of person in arrest. The phrase “within the specific limits of his arrest” was deleted from what now is the next to the last sentence because it improperly implied a limitation on the duties which may be required of a person in arrest. ACM S-1894, Hunt, 3 CMR 573 (1952).
The last sentence, a cross reference to 131c(3), is a new addition. The significance of this cross reference is to point out that different rules apply as to duties that may be performed while in arrest in quarters as a punishment under Article 15. Particularly, it should be, noted $hat the Secretary concerned has full authority to prescribe duties that may be performed by a commissioned or warrant officer undergoing this punish- ment under Article 15. Also, there is no limitation under Article 15 on requiring performance of full military duty.
Preliminary inquiry into offense prior to arresting or confining. The second paragraph is a completely new addition. The first sentence of this paragraph is based upon United States v. Teague, 3 USCMA 317, 12 CMR 73 (1953) and United States v. PetrofS-Tachomakolflf, 5 USCMA 824, 19 CMR 120 (1955). The remainder of the paragraph is based upon United States v. Howard, 2 USCMA 519,lO CMR 17 (1953).
Apprehension of deserters by civil authorities. This paragraph has been substantially modified. The material formerly contained in the first paragraph of 23b as to the arrest of deserters by civilians has been deleted. The legality of such a procedure is highly questionable, particu- larly since the best authority for these arrests is dicta in Kurtz v. Mofit, 115 U.S. 487 (1885). Additionally, it is felt that there is no necessity for dealing with this subject in $he MCM and that citizen arrests should not be encouraged. Accordingly, the paragraph has been assigned a title suita- ble for its revised content and all subparagraphing has been abolished.
AGO 20081A
AGO 20081A
CHAPTER 6

PREPARATION OF CHARGES
Paragraph
24b Definition of additional charges. The third sentence was changed and the last sentence was added to make it unquestionably clear that charges cannot be added after arraignment. United States v. Davis, 11 USCMA 407,29 CMR 223 (1960). See 37c(l).
Joining minor and serious offenses. A cross reference to 30g and 33h was added at the end of this subparagraph to indicate that the joining of minor and serious offenses is also subject to the general rule that all known charges should be tried at a single trial as stated in those subpara- graphs.
General rules and suggestions regarding joint offenses. In the next to the last sentence of the last paragraph, the words “except upon his own request” have been substituted in place of “for the prosecution upon his consent.” See 18 U.S.C. $3481 (1964).
Contents of specification. The second sentence was restated as a gen- eral rule. The sentence as written in the former Manual b.ound drafters of specifications to a standard which was too rigid, and which practice indi- cates need not be literally followed in all instances. For example, the form specifications for rape, carnal knowledge, larceny, and maiming do not specifically set out all the individual essential elements (app 6c), although it might be said that these elements are included by implication. Addition- ally, the Court of Military Appeals has held that the sufficiency of a specification may be determined by other tests. In United States v. Au-trey, 12 USCMA 252, 30 CMR 252 (1961), the test applied was whether the specification stated the facts in sufficient particularity to apprise the accused of the crime against which he must defend and to enable him to avoid a second prosecution for the same offense. In United States v. Chaney, 12 USCMA 378, 30 CMR 378 (1961), the test was whether the specification followed the language of the statute defining the offense and the form specification prescribed in the Manual.
The former third sentence was deleted. That sentence indicated that a specification must exclude every reasonable hypothesis of innocence. It was felt that this sentence was not literally true in all cases and presented the danger of being misunderstood by laymen using the MCM.
The present third sentence, a cross reference to appendix 612, is a new addition. The purpose of this addition is to qualify the general rule in the preceding sentence by showing that, if abbreviated pleadings are used, the ones in the appendix are the ones to be used.
Each specification to allege but one offense. The third sentence was modified to illustrate that conjunctive pleading is permissible when more than one means are used to commit an offense. See Fed. R. Crim. P. 7(c).
AGO ZllOSlA

Paragraph
AGO 20081A
CHAPTER 7

SUBMISSION OF AND ACTION UPON CHARGES
Preparation of charge sheet. The sentence, “Charges will be prepared as prescribed by regulatiohs of the Secretary of a Department,” was substituted for this entire subparagraph as this matter was viewed as best left to regulations.
Basic considerations. Subparagraph b is a new addition which was added because of the decision in Mircmda v. Arizona, 384 U.S. 436 (1966) and United States v. Tempia, 16 USCMA 629, 37 CMR 249 (1967). The subparagraphs following b have been redesignated accord- ingly.
The second paragraph of the former e (now f) was deleted. Its advice about preferring charges in AWOL cases to stop the running of the statute of limitations is now covered by the new second sentence of 32c. Its statements about depositions were dated by United States v. Jacoby, 11USCMA 428, 29 CMR 244 (1960), which recognized the right of an accused to be present with his counsel at the taking of a deposition; and the matter about holding the charges and allied papers with the service record of the accused pending his return to military control was viewed as a subject best left to regulations.
The language in g (formerly f) was changed to emphasize that the referral of all known offenses to one trial is discretionary and not manda- tory with the convening authority. As for the possible need of this empha- sis, see the statement in dictum by Judge Ferguson that the referral of all known offenses is mandatory. United States v.Showalter, 15 USCMA 410, 413,35 CMR 382,385 (1965).
Action by persons having knowledge of a sz~pected offense. Every- thing after the second sentence was deleted. The procedure which was outlined did not represent current practice. Usually the accuser, unless he is a commander, does not participate in the administrative handling of the case and merely brings the incident to the attention of the appropriate authorities.
Action by commander exercising immediate jurisdiction under Arti- cle 15. The introductory paragraph and 32a are, in substance, the same as in the former Manual. The substance of the former 32a was placed in the first two sentences of the introductory paragraph for emphasis. In addi- tion, the term “warrant officer” is used in the introductory paragraph to conform with 128a which provides that a warrant officer exercising com- mand and, under certain conditions, an “officer in charge” in the Navy, Marine Corps, and Coast Guard, may exercise Article 15 authority.
General. This subparagraph, which makes 32 and its subparagraphs subject to the basic considerations stated in 30, is a transposition of part of the material that was in the introductory paragraph.
Pam 27-2
Paragraph

32b Preliminary Inquiry. The fourth and fifth sentences were adapted from the former fourth sentence. The change removes any implication that general exploratory searches are proper.
Preferring charges. The second sentence was deleted because of the
change in 29d. A new second sentence was inserted. See the comment on
the changes in 30e.
Nonjudicial punishment. The second to last sentence is the same as the amendment to this subparagraph by Exec. Order No. 11081, 28 Fed. Reg. 945 (1963), which removed the limitation of this sentence to just noncommissioned or petty officers.
Forwarding charges-Minor offenses.The last sentence, which stated that the forwarding of charges without a letter of transmittal by the commander exercising immediate Article 15 jurisdiction was a recommen- dation for trial by summary court-martial, was deleted as it is no longer appropriate. It was inserted in the Manual at a time when a summary. court-martial could impose far more serious punishment than could be imposed under Article 15. In this connection, see the first clause of the sentence comprising this subparagraph.
Fo~warding charges-Serious offenses. “Personnel records” was sub- stituted for “service records” as “personnel records” is a generic term which includes any records in which a record of previous convictions are entered. In accordance with Army usage, “service records” formerly re- ferred to a particular portion of the personnel records.
Preliminary inquiry by officer exercising summary court-martial ju- risdiction. In the second sentence of the second paragraph, “as appropri- ate” was inserted after “will take the action outlined in 32” as all of 32 may not be applicable.
Date of receipt. In the first sentence, “again& a member of his com- mand” was deleted ~EIan unnecessary qualification.
Alterations. In the first sentence, “are formally correct” was inserted.
Effect of investigation of subject matter before charges preferred. In the first sentence after “if the accused was present at the investigation,” the words “of that charge” were deleted to conform more closely to the language of Article 32 (c) .
Dismissal of charges. No change of substance was made. The refer- ence to Article 43(e), which had been the second sentence of the second paragraph, was transposed to be the last sentence of the second para- graph. In the first sentence of the second paragraph the words, “who, if he concurs in such finding, will forward the case through the chain of command to the Secretary of the appropriate department,” were deleted. The forwarding of charges to the Secretary concerned was covered by the addition of this action to the next to last sentence of the second para- graph.
Nonjudicial punishment. In the third sentence, “he may return the case to the immediate commander for appropriate action” was substituted for “he may direct the immediate commander of the accused to take appropriate action,” to avoid the implication that the higher command may direct the action of the lower commander. The fourth and fifth
AGO 20081A

Pam 27-2
Paragraph The last two sentences were deleted. These sentences suggested that ap- pointment of permanent pretrial counsel might be appropriate to avoid delay, and this type of suggestion can be better covered by means other than an executive order.
The second and third paragraphs were transposed.
The last paragraph is new. It recognizes that the United States may be represented by counsel at the Article 32 investigation when the accused is represented by counsel. United States v. Weaver, 13 USCMA 147, 32 CMR 147 (1962) ; United States v. Young, 13 USCMA T34, 32 CMR 134 (1962).
Witnesses. At the end of the second sentence of the first paragraph, “who will determine the availability of the witness” was added. The third sentence of this paragraph is MCM, 1951, was deleted as the issue of the availability of the witness can be raised at trial.
In the first sentence of the second paragraph, “must be examined on oath or affirmation” was substituted for “should be examined on oath or affirmation.” See United States v. Samuels, 10 USCMA 296, 27 CMR 280 (1959). In the fourth sentence of this paragraph, the suggestion concern- ing the taking of depositions was limited to witnesses who “are not reasonably available”; and this limitation was removed as depositions should be taken from material witnesses who may not be available at time of trial even if their absence would be unreasonable.
The last sentence of the last paragraph is new.
Action by officer exercising genepal court-martial jurisdiction in gen- eral. The third and fourth sentences were changed to be the same as the amendments to this subparagraph in Exec. Order No. 11081, 28 Fed. Reg. 945, (1963). The primary change was in the fourth sentence where “of which only the power under Article 15 may be delegated (128a)” was substituted for “none of which may be delegated.” In the last sentence, “for appropriate disposition” was substituted for “with the instruction that appropriate action by taken by him” to avoid the suggestion that the officer exercising general court-martial jurisdiction may direct the action to be taken by the subordinate commander.
Reference to staff judge advocate or legal officer. The third sentence of the first paragraph is new. It provides that the appropriate Judge Advocate General will act as the staff judge advocate when the Secretary concerned is the convening authority. The next to last sentence of the first paragraph is also new, and provides, in effect, that there will be a new pretrial advice before referral to trial in a case where there was a mistrial. It is contemplated that this advice will discuss whether the mistrial was “manifestly necessary in the interest of justice” relative to determining if further prosecution is permissible. See 56e(l). If there is further prosecution, no review of the proceedings terminated by the mistrial is required. See 56e(3). However, if there is no further prosecu- tion, a review limited to the question of jurisdiction should be prepared. See 56e and 85b.
In the first sentence of the second paragraph, “in such manner and form as the convening authority may direct” was deleted in favor of a cross reference to 35c. See United States v. Heaney, 9 USCMA 6, 25 CMR 268 (1958).
AGO 20081A

AGO 20081A
CHAPTER 8

CONVENING OF COURTS-MARTIAL
Paragraph
36a Convening orders in general. The second sentence was modified to indicate that it may be inferred from the detail of personnel to court-mar- tial duty that they are on active duty with an armed force. Previously, this sentence indicated that such an appointment was prima facie evid-
ence of this fact. This change is based on numerous cases condemning the use of the term “prima facie.” See e.g., United States v. Simpson, 10 USCMA 548,28 CMR 109 (1959).
Form and content of convening orders. The third sentence is a new addition. This sentence sets forth the rule that convening orders should not contain a large number of court members with the intention that only some of them will be present for each trial. The practice eliminated by this sentence has been condemned as reflecting unfavorably on the dignity of the court by giving a casual appearance to the convening of the court. That practice also made it appear that a subordinate of the convening authority was selecting the composition of the court for trial. See United States v. Allen, 5 USCMA 626, 18 CMR 250 (1955) ;CM 363955, Andress, 11CMR 299 (1953).
In addition to the technical changes of replacing “law officer” with “military judge,” a new provision was added whereby the convening order shall, unless otherwise provided by secretarial regulations, show that the certified legal personnel have previously taken a prescribed oath as now provided for in Art. 42(a).
This paragraph was amended to state that although the accused may request enlisted members at any time prior to assembly, he should do so at any Art. 39(a) session held prior to assembly. See comments opposite 4b. “Court has been assembled for trial” has replaced “accused has been arraigned” since arraignment may now occur at an Art. 39(a) session held prior to assembly.
Exception to the general rule regarding changes in personnel of the court. The second sentence of the first paragraph was modified to define “good cause.” See United States v. Boysen, 11USCMA 331, 336, 29 CMR 147, 152 (1960). Of course, ordinary leave (ACM 12932, Boshears, 23 CMR 737 (1956)) and routine duties would not constitute good cause under this definition.
The requirement was added to the first paragraph that the record of trial must detail the basis for the absence or relief of a member. United States v. Whitley, 5 USCMA 786, 19 CMR 82 (1955) ; United States v. Grow, 3 USCMA 77,83,11 CMR 77,83 (1953).
Also in the first paragraph, the policy against appointment of addi- tional court members after assembly, except as required by reduction of court membership below a quorum (United States v. Greenwell, 12
AGO 20081A

Pam 27-2
Paragraph

USCMA 560, 31 CMR 146 (1961)) or for other good cause such as a request of an accused for replacement of a member excused for good cause (United States v. Grow, supra). was stated in mandatory language.
If permitted by secretarial regulations, arraignment may be held at an Art. 39(a) session held prior to assembly. he presence of members, however, is not required until “assembly.” Therefore, “arraignment” was changed to “assembly” as the critical point with reference to absence of court members. This change conforms with amended Art. 29.
Manner of effecting changes in the composition of the court. The title of this subparagraph has been changed from “Formal changes” to “Changes in composition” on the basis that the new title is more appro- priate.
“If trial proceedings have not begun, any case pending before the old court may be withdrawn subject to the limitations in 56” was substituted for “any unarraigned case which is pending before the old court may be withdrawn from it and referred to the new court.” Significant action in the case such as an Art. 39(a) session and request for trial by the MJ alone may occur prior to arraignment. The critical point for having good cause for withdrawing charges is commencement of trial including an Art. 39(a) session rather than arraignment. The standards of 56 serve as sufficient guidance that such action will be scrutinized for arbitrary or unfair withdrawal. 56 also covers the situation where the accused has requested trial by MJ alone, although the trial has not yet commenced.
Manner of effecting excusal of personnel. The title of this subpara- graph has been changed from “Informal changes” to “Excusing person- nel” on the basis that the new title is more appropriate.
Command relationship with court. The prior first paragraph was deleted and the title of the paragraph, formerly designated as “Instruct- ing Personnel of Court,” was changed in order to provide a more appro- priate title as required by the deletion.
This paragraph was extensively revised to implement the amendment to Art. 37. The revised paragraph strengthens the existing prohibitions against unlawful influence on members or officials of a court-martial by the convening authority or other commanding officers. General informa- tional lectures on military justice are exempt from the prohibitions. See United States v. Davis, 12 USCMA 576, 31 CMR 166 (1961) and United States v. Danxine 12 USCMA 350, 30 CMR 350 (1961). The paragraph now provides that performance of a member of a court-martial may not be evaluated in preparing an effectiveness, fitness, or efficiency report on him or in determining his fitness for promotion, transfer, or retention in the service. A counsel may not be given a less favorable rating or evalua- tion because of his zeal in acting as defense counsel in a court-martial. The convening authority and any member of his staff may not prepare or review any report concerning the effectiveness, fitness, or efficiency of the MJ which relates to his performance of duty as MJ at a GCM, provided the court was not convened by the President or the Secretary concerned (Art. 25 (c).
As for the SPCM, the prohibition extends only to the convening authority and not to any member of his staff. The provisions dealing with MJ’s performance of duty as a SPCM is not an implementation of an
AGO 20081A

Paragraph amendment to Art. 37. “The Military Jbstice Act of 1968,” leaves to the services a degree of flexibility in regard to the use of judge advocates as MJ’s of SPCM’s. This leaves the MJ of a SPCM without some of the isolation provided for the MJ under an independent field judiciary concept. In an effort to balance the desirability of having a system whereby the MJ of a SPCM can be used for other duties but to insure independence in his judicial capacity, this provision has been added to the paragraph without statutory basis.
CHAPTER 9

PERSONNEL OF COURTS-MARTIAL
Paragraph 393(1) The MJ presides over each session of the court-martial to which he has been detailed-Art. 26(a). His rulings on matters of law or interlocu- tory questions other than the factual issue of mental responsibility are final. He may change his rulings at any time during the trial (including during Art. 39 (a) sessions)-Art. 51 (b). He rules finally on challenges Art. 41. He may permit or forbid the taking of depositions-Art. 49.
Recognizes Art. 39 (a) sessions. The term “Article 39 (a) session” was devised in lieu of the “pretrial session” referred to in the committee report, because an Art. 39(a) session is part of the trial and may be held at any time, including subsequent to announcement of sentence. The possi- ble confusion engendered by use of the term pretrial with regard to changing rulings, detailing counsel, calling witnesses and accepting a plea of guilty and entering a finding thereon, destroyed the utility of that term for the purposes of the Manual. The text is silent relative to challenges, but see 62d.
Provision is made for ho1,ding arraignment, receiving plea^, and entering findings at such sessions if permitted by regulations of the secre- tary concerned.
As the presiding officer, the MJ sets the time for assembly. He may no lbnger assist the court in putting its findings in proper form in closed session. He may, however, give additional guidance in open court. (Art.
26(e).)
Provides for the court composed of the MJ alone. See Arts. 16 and 51 (d) and notes opposite 4a. The MJ alone determines all questions of law and fact, makes findings, and adjudges sentence. No instructions are given by an MJ but special findings may be requested. See notes opposite 71f.
Provision for assisting the members in closed session in putting their finding in proper form has been eliminated to conform to Arts. 26 and 39.
New Military Judge. Conforms existing paragraph to the Act with regard to replacing MJ who is presiding over a trial with members, and implements new Art. 29(d) with regard to replacing MJ who is trying case alone.
The first sentence was rewritten to permit change of the MJ during the trial only for good cause. Two sentences were added thereafter which define good cause and provide that the facts are to be recorded. United States v.Boysen, 11USCMA 331,336,29 CMR 147,152 (1960).
The fourth sentence was modified so as not to require that the read- ing of the record to a new MJ be done in the presence of the court members. Reading in the presence of the members is not required by the
AGO 20081A

Paragraph
41d(2) Changed to insure presence of EM’s “at all sessions at which mem-bers are present after assembly” when EM’s are required pursuant to request of accused for EM’s on the court.
Changed “arraignment” to “assembly” to conform with Art. 29. The last sentence was added requiring TC to state the reason for the excusal of a court member by the convening authority. See also 37b. United States
v. Metcalf, 16 USCMA 153,36 CMR 309 (1966).
In covering the procedure to be followed with new members of a general or special court-martial, a parenthetical phrase was added to cover the possibility that the new member might have been previously sworn pursuant to secretarial regulations as now authorized by Art. 42(a).
New member of general court-martial. In the first sentence, the word “evidence” was substituted for the words “testimony of each witness” and the word “introduced” substituted for “examined.” See the discussion of changes in 39e, supm. The words “in open session” are also a new addi- tion to this sentence. They were added because it would be improper to have a new member hear testimony which was previously heard out of the presence of the court members.
New member of special court-martial. In the first sentence the word “evidence” has been substituted for the words “testimony of” and the word “introduced” substituted for the words “examined witnesses.” See the discussion of changes in 39e, supra.
Suspension of counsel. The scope of the first paragraph was broad- ened by providing that suspension may also be temporary and that a suspension may be on other reasonable grounds besides professional or personal misconduct. These changes now give the Judge Advocates Gen- eral authority to suspend for reasons such as security or mental impair- ment. Temporary suspension contemplates suspension for a particular case or series of cases.
The second paragraph is a new addition. It provides that suspension by one Judge Advocate General or disbarment or suspension by the Court of Military Appeals will be a basis for suspension as counsel by other Judge Advocates General, without further hearing.
Absence of trial counsel. The MJ was added as an authority permit- ted to excuse trial counsel from attendance at trials. The authority of the president to excuse was limited to special courts-martial without an MJ.
Trial counsel reports of result of trial. This subparagraph was modi- fied to eliminate the requirement for the trial counsel submitting the report of the status of cases on hand to the convening authority. This report was frequently not submitted in actual practice, and its deletion is consistent with the Presidential directive to reduce reports. The title of the subparagraph was changed to one which will more accurately describe the material now remaining therein.
Notification of personnel and witnesses by Trial Counsel. Provision is made for the TC to include in his notice instructions appropriately ema- nating from the MJ, as well as the president. For example, the MJ pre- scribes the uniform at Art. 39(a) session and the president for sessions with members. The MJ may instruct the TC to include in the notice the matters the MJ intends to consider at an Art. 39 (a) session.
AGO 20081A
Pam 27-2

Paragraph A new second paragraph provides that only a person qualified under Art. 27(b) or otherwise qualified as a lawyer may act as counsel for the accused before a GCM, unless the accused after proper advice elects to defend himself. United States v. Davis, supra; United States v. Kraskous- kas, supra.
Since the Act requires defense counsel detailed to BCD SPCM to be lawyers, the manual requires individual counsel also be lawyers. This incorporates the principle of Kraskoushas that individual counsel must have the same qualifications as those required for detailed counsel. This position is reinforced by the sentiments expressed by C. J. Quinn in his concurring opinion in United States v. Culp, 14 USCMA 199, 218, 33 CMR 411,430.
Broad language was intentionally used in this paragraph so ‘as to permit foreign lawyers to act as individual counsel before courts-martial. United States v. Nichols, 8 USCMA 119, 125, 23 CMR 343, 349 (1957). The last sentence’of this new paragraph indicates that the accused is not precluded by these provisions from having a non-lawyer present at the counsel table for the purpose of consulting with him.
Detail of individual military counsel. This subparagraph was com-pletely revised. It now places the responsibility for determining the rea- sonable availability of requested counsel upon the commanding officer or head of the organization, activity, or agency with which the requested counsel is on duty. The purpose of this revision is that, ;the former sub-paragraph failed to clarify who was to act on a request for a counsel not under the convening authority’s command. The tendency under the for- mer provision was to place the determination at a higher level than necessary although commanders and leaders at lower levels are in a better position to know the status of the requested person and therefore are in a better position to make an intelligent determination. In rewriting this subparagraph, consideration has been given to the fact that today we have many varied and complex activities, agencies, and organizations in the services. Often military officers work under the supervision of civilian departmental heads. The former subparagraph also failed to clarify what next superior authority should act on an appeal from an adverse decision, that is, the superior of the convening authority or the superior of the requested counsel’s superior. This problem is now solved by making it clear that it is the superior in the requested counsel’s chain of command. The subparagraph as rewritten will make it possible to resolve requests at the operational level where the availability of information is immediately at hand. Although it does away with the right of appeal from an adverse decision if it must be decided at departmental or higher level, it is not believed that the change will jeopardize the rights of the accused since the decision itself is subject to review at the trial and appellate review. United States v. Cutting, 14 USCMA 347, 34 CMR 127 (1964). A require- ment was also added that all actions pertaining to a request for counsel shall be included in the record of trial. United States v. Cutting, supra.
The first sentence of the last paragraph was modified by deleting the prohibition that a person is disqualified for detail as individual counsel simply because he has been named in the convening order as the trial counsel or assistant trial counsel in the case. There is no such limitation in the Code (see Art. 27(a)) nor is there any good reason why the
AGO 20081A
CHAPTER 10

GENERAL PROCEDURAL RULES
Paragraph
53b The example given in this paragraph was changed in view of the amendment to Art. 42(a) whereby there is no longer any requirement that prescribed oaths be administered to court-martial personnel in the presence of the accused.
Changed to recognize that each accused has a right to request trial by MJ alone. In a joint trial, when only one accused makes such a request, the MJ may either deny the request or grant a severance.
Provides for the new Art. 39(a) session as a part of the trial. Such a session held before assembly must comply with the time provisions of Art. 35. Subsections (a), (b), (c), and (d) repeat the statute. The lan- guage of Art. 39(a) is quite broad and the examples listed in the Manual paragraph are not intended to limit in any way the matters which may be considered in an Art. 39(a) session. For example, see 62d with regard to challenges. The same procedure and authority for obtaining witnesses is available for an Art. 39(a) session as is available for the other parts of the trial. See notes opposite 39b (2).
The statute does not limit the number of such sessiocs which may be held before and after assembly and this Manual imposes no such limit. The statement in the Senate Committee Report (p10) that “Only one pretrial session would be called in any particular case . . . . .” is in the nature of a prediction of experience which does not limit the statutory language.
Sets forth the statutory requirements for trial by MJ alone (Art. 16). Such a court has no jurisdiction to try a capital mse. (Art. 18). The written request for trial by MJ alone originates with the accused after the case is referred to a panel with MJ and members. The accused must have consulted with counsel and the MJ should make an inquiry to be sure the request was understandingly made.
The procedure described by paragraph 53d(2) is designed to allow the maximum degree of flexibility while safeguarding the rights of the accused.
If the MJ receives a request prior to trial which appears proper on its face, he may approve it immediately and call for assembly for trail by him alone. If the MJ receives a request upon which the TC has requested argument or about which he has doubts, he may call an Art. 39(a) session to examine the request and hear arguments. If the request is made and approved at an Art. 39(a) session, the MJ should announce that the court is assembled. There would be no reason to continue the session under Art. 39(a) since the single officer court has the same facility of proceeding, that is, Art. 16 gives the 34.1authority to sit alone and no furt,,. :r r.2course to Art. 39 (a) is required. See 36c and 67b.
AGO 20081A

Pam 27-2
Paragraph Approval of the withdrawal of a request for trial by the MJ alone is discretionary with the MJ. Cf. Riadon v. U.S. 274 F2d 304, McCranie v.
U.S. 333 F2d 307, 46 ALR 2d 919.
The last subparagraph (53d (2) (e) ) is merely a general statement that procedure before the MJ alone shall be the same as before the MJ with members were appropriate.
Art. 39(a) sessions are always open sessions. The former provision covering assisting the court on findings in closed session has been elimi- nated to conform to Article 26 and 39.
A third paragraph was added limiting the use of legal references by court members to the president of a special court-martial in open session only. United States v. Rinehart, 8 USCMA 402,24 CMR 212 (1957).
Spectators and publicity. This subparagraph was substantially re-vised to correctly state the law regarding the exclusion of spectators. See United States v. Henderson, 11USCMA 556, 29 CMR 372 (1960) ; United States v. Brown, 7 USCMA 251, 22 CMR 41 (1956), and the cases cited therein; United Press Association v. Valente, 308 N.Y. 71, 123 N.E. 2d 777 (1954) :
The recording of court proceedings by recording or similar devices for public release or broadcast was added to the prohibitions in the third paragraph. The provision for permitting the prohibitions in this para- graph if approved by the Secretary concerned has been deleted as unnec- essary and in order to make the prohibitions absolute.
The fourth paragraph is a new addition.
ExpZanation of rights of accused. The latter portion of this subpara- graph was significantly modified. The statement was eliminated which provided that the meaning and effect of a guilty plea will be explained in open court unless it otherwise appears in the record that the accused is aware of his rights. It has been replaced by a cross reference to 70b where the procedure for guilty pleas is covered in detail. The prior provision was not satisfactory because it did not indicate that the explan- ation should be out of the presence of the members of a general court- martial (see United States v. Drake, 15 USCMA 375, 35 CMR 347
(1965)), and it indicated that it was unnecessary to make the explanation in all guilty plea cases (see United States v. Richardson, 15 USCMA 400, 35 CMR 372 (1965)), United States v. Griffin, 15 USCMA 135, 35 CMR 107 (1964). The subparagraph also now indicates that an accused who is not represented by legally qualified counsel should be advised of his rights to testify at all appropriate stages of a trial, and that it may be assumed that an accused represented by legally qualified counsel has been properly advised as to these rights. It further provides that the MJ may inquire of the defense counsel if an accused has been advised of his rights as a witness or may explain the rights if he desires to do so, but it must be done out of the hearing of the court members. United States v. Endsley, 10 USCMA 255,27 CMR 329 (1959).
Responsibility of the court regarding the int?.oduction of evidence. The next to the last sentence of this subparagraph is a new addition which cautions the court against departing from its impartial role in obtaining additional evidence. Many cases announce the principle that the
AGO 20081A

Paragraph court members may not assume the role of the prosecution. E.g., United States v. Blankenship, 7 USCMA 328, 22 CMR 118 (1956).
The last sentence of this subparagraph, prescribing that the right of the members of the court to cause the recall of a witness or to call for additional evidence is subject to an interlocutory ruling by the MJ or president of a special court-martial without an MJ as to the propriety therefor, is also a new addition. There has been some confusion in regard to the former manual provisions in this regard. Compare United States v. Rogers, 14 USCMA 570, 34 CMR 350 (1964) with United States v. Salley, 7 USCMA 603, 23 CMR 67 (1957) and United States v. Parker, 7 USCMA 182, 21 CMR 308 (1956). This sentence thus establishes that courts-mar- tial shall follow the Federal rule in this regard and the one announced in the Rogers case.
Introduction of documentary evidence. The first sentence of the first paragraph was changed to require attachment to the record of all docu- ments marked for identification and not admitted in evidence. This change was made because this is the usual practice today, and these documents are often required by appellate agencies when there has not been a re-quest for attachment by counsel.
Action when evidence indicates an offense not charged. This para- graph was revised by deleting the procedure for interrupting the trial and referring the matter to the convening authority for direction when the court is of the opinion that an accused may be guilty of an offense other than the one charged. In United States v. Johnpier, 12 USCMA 90, 30 CMR 90 (1961), the Court of Military Appeals stated that the procedure formerly provided for in this paragraph was archaic, injudicious, con-trary to Article 51, and violative of the spirit of the Code.
Withdrawal of specifications; general, grounds for, and effect of.
These paragraphs were revised to accomplish the following :
(1) To clearly indicate that although the convening authority has an unrestricted right to withdraw a case or specification (this authority has always been inherent in this paragraph), he must exer- cise it cautiously unless he intends to dismiss as the withdrawal may bar future prosecution of the withdrawn offenses dependent upon the facts involved.
(2) To distinguish between the withdmwal elf an entire case and

he withdrawal of only some specifications after commencement of a triial. Normally, an entire case may be withdrawn after commencement of the trid only because of urgent and unforeseen military necessity. See Wade v. Hunter, 336 U.S. 684 (1949). Although less than all of the specifications can be withdrawn with a view to future prosecution when good reason is shown, it is only in extremely limited situations that the use of this authority will be appropriate. See United States v. Williams, 11 USCMA 459, 29 CMR 275 (1960) which well illustrates
the problem of withdrawal after trial commences.
(3) To emphlasize that the criti’cal time f,or having good cause $or

a. withdrawal is after the trial commences whether by Art. 39(a) ses-sion or assembly rather than after arraignment. United States v. Williams, supra.
AGO 20081A

Pam 27-2
Paragraph

(4) To require that the reasons for a withdrawal after trial com- mences he made a matter of record.
These changes were necessitated by the fact that the MJ and the special court-martial have the sole responsibility for the conduct of a trial. United States v. Walter, 14 USCMA 142, 33 CMR 354 (1963); United States v. Johnpier, 12 USCMA 90, 30 CMR 90 (1961); United States v. Grant, 10 USCMA 585, 28 CMR 151 (1959) ; United States
v. Lynch, 9 USCMA 523, 26 CMR 303 (1958); United States v. Ivory, 9 USCMA 516, 26 CMR 296 (1958); United States v. Patrick, 8 USCMA 212, 24 CMR 22 (1957) ;Uniied States v. Harris, 8 USCMA 199, 24 CMR 9 (1957) ;United States v. Stringer, 5 USCMA 122, 17 CMR 122 (1954).
A third unnumbered paragraph has been added to 56b which limits withdrawal of a case after the accused has requested trial by the MJ alone except for good cause. See comment opposite 37c. This provision recog- nizes that the decision to request trial by MJ alone is a significant event in the processing of a case.
Action of the trial counsel upon a withdrawal of specifications. Mate-rial was added to provide for the proper procedure when a specification is withdrawn after a trial has commenced. Accordingly, the title of the subparagraph was changed to conform with the expanded contents thereof.
Mistrials. This subparagraph is a new addition which is generally based on the cases cited in the second paragraph of the. discussion above as to changes in 56a,b, and c. Also see United States v. GofSe, 15 USCMA 112, 35 CMR 84 (1964) regarding a mistrial as to sentence proceedings only.
Znterlocutory questions other than challenges in general. This paragraph has been revised to reflect the changes in Art. 51(b). It has been reorganized to include in a those provisions which are equally applicable to the military judge and to the president of an SPCM without an MJ (i.e., (1) the ruling on the factual issue of mental responsibility is subject to objection by any member and (2) treatment of offered evid- ence). Provision is made for instructing the court members on the factual issue of mental responsibility of the accused before they indicate whether or not they object to a ruling which was made subject to their objection
(U.S. v. Williams, 5 USCMA -197, 17 CMR 197 and U.S. v. Gray, 6 USCMA 615, 20 CMR 331). In view of the increased authority given the president of the special court-martial without a military judge and the creation of the new lspecid aowt-martial with amilitary judge, the “key” used in this paragraph of the MCM (1969) to differentiate rulings on specific issues made by the president finally from rulings made subject to objection has been abandoned in flavor of spelling out specifically in each insta,n!ce by whom the ruling is mde and explaining in para 57b and c how finality of a ruling by the president is determined.
Applicability of paragraph on interlocutory questions other than. chal- lenges. Subparagraph has been revised to clarify and illustrate what is meant by interlocutory questions, questions of law, questions of fact, and mixed questions of law and fact. The changes in this paragraph were requir- ed by amendments to Art. 51(b). Final rulings are made by an MJ on “any
AGO 20081A
Pam 27-2

Paragraph question of law or any interlocutory question . . .,” whereas a president of an SPCM without an MJ rules finally upon “any question of law.” Interlo- cutory questions may, of course, be either questions of law or questions of fact. Since a president, unlike an MJ, does not rule finally on all interlocu- tory questions, the fact/law distinction becomes important. Accordingly, 57b now discusses questions of fact, questions of law, and mixed ques- tions. The general definition of an interlocutory question remains the same.
The example used in the third paragraph was based on United States
v. Orvelas, 2 USCMA 96, 6 CMR 96 (1952). See also United States v. Carson, 15 USCMA 407, 35 CMR 379 (1965) and United States v. Boehm, 17 USCMA 530,38 CMR 328 (1968).
Rulings by the president of a special cozcrt-martial without an MJ.
This subparagraph reflects the change in Art. 51 (b) concerning the power of the president of an SPCM without an MJ to rule finally on questions of law.
See also United States v. Bridges, 12 USCMA 96, 30 CMR 96 (1961).
Rulings by Military Judge. This subparagraph expands the area in accordance with Art. 51(b), in which the MJ rules finally to include his ruling on a motion for a finding of not guilty.
Conforming changes were made in e on the form of ruling, in f on voting on interlocutory questions, and in g(2) to indicate out-of-court hearings are necessary only when the MJ is sitting with members.
Inquiry necessary by the law officer into interlocutory questions; preponderance’ of evidence. The first portion of the second paragraph was changed to incorporate matters concerning the admissibility of a pretrial statement of an accused and other possible matters which might be preju- dicial to an accused as items which the MJ should hear out of the hearings of the court. United States v. Cates, 9 USCMA 480, 26 CMR 260 (1958). Also, this subparagraph now requires that all out-of-court hearings be transcribed, recorded, and incorporated in the record of trial. United States v. LampJcins, 4 USCMA 31,15 CMR 31 (1954).
The former last two sentences of the fourth paragraph were deleted and one new sentence added in their place. This new sentence requires incorporation of written arguments in the record of trial. United States v. Lampkins, supra.
Subparagraph has been modified to state that the president of an SPCM without an MJ may close and consult with other members of the court before making his ruling, only when such ruling is subject to objec- tion by any member.
Postponements and continuances. “Postponements” were added to the title to more accurately describe the contents of the paragraph.
Postponement of trial. This subparagraph was modified so that it now covers only postponements rather than postponements and continu- ances. Also, the convening authority has been added as a proper party from whom to request a postponement before trial. The former last sent- ence was deleted as unnecessary. The paragraph was further changed to reflect the fact that the MJ sets time for trial.
AGO 20081A

Pam 27-2
Paragraph 58b Continuances in general. This subparagraph was revised to indicate that continuances are in the sole discretion of the MJ or president of a special court-martial without an MJ. The purpose of the changes is to make it clear that the convening authority has no powers in the area of granting delays once a trial begins. United States v. Knudson, 4 USCMA 587,16 CMR 161 (1954).
Grounds for continuance. Two new sentences were added at the end of the second paragraph. They indicate that in computing the number of days from the service of charges until the trial, the date of service and date of trial are excluded, and that Sundays and holidays are not ex-cluded. United States v. Niclzols, 2 USCMA 27,6 CMR 27 (1952).
Application for a continuance. This subparagraph was modified so as to deal only with applications for continuances which are requests for delay after a trial begins. A request for a delay before trial is a request for a postponement. Accordingly, the title was changed to conform with the content. Also, the former first paragraph was modified for consistency with the approach in 58b and Knudson, supra.
The second paragraph was changed to state that an application for continuance should be made at an Art. 39(a) session held prior to assem- bly. There is no need to wait until after the arraignment if counsel is aware of any reason for requesting a continuance at the Art. 39(a) session.
Matters in support of application for continuance. This subpara- graph has been modified to indicate that the subject matter relates to “matters” and not “evidence” or “facts.” Normally, “evidence” is not introduced to support an application for a continuance.
The former last paragraph was deleted on the basis of United States
v. Thornton, 8 USCMA 446, 24 CMR 256 (1957). That paragraph indi- cated that an application based on the absence of a witness may be denied when the opposite party is willing to stipulate that the absent witness would testify as stated in the application unless it clearly appears that such denial would be prejudicial.
CHAPTER 11

ORGANIZATION OF THE COURT AND ARRAIGNMENT OF THE ACCUSED
Paragraph 59 Attendance of the Court. This paragraph has been revised to avoid conflict with new use of the term “assembly.”
In the second paragraph, the reference to the convening authority was deleted to avoid any implication that he may intrude into the proceed- ings.
Attendance and security of accused. The first sentence of the first paragraph was amended by providing as a responsibility of those persons responsible for the attendance of the accused that they “will determine the nature and degree of any restraint.” The next sentence is new, and places responsibility on the MJ or president of a special court-martial without an MJ to determine what physical restraint will be imposed on the accused during open session of the court. Added provision for MJ designating appropriate uniform.
The third paragraph was deleted as being unnecessary and contradic- tory to the changes in the first paragraph. The substance of this para- graph was that neither the court nor the trial counsel had responsibility for the security or restraint of an accused, they could make recommenda- tions as to these matters, and the court controlled the personal freedom of the accused in its presence.
The reference to 74f(l) was deleted since the MJ may no longer enter closed session.
Informal Inquiry. The caption has been changed from “preconvening procedure” to “informal inquiry” to avoid any confusion with an Art. 39(a) session held prior to “assembly.” Also, an added paragraph pro- vides for inquiry into existence of a request for trial by the MJ alone.
Seating of personnel and the acczcsed. The seating of personnel other than court members was changed from “as the president directs” to “as the MJ, or the president of a special court-martial without an MJ may direct.”
Announcing Personnel. Changed to reflect that in accounting for parties to the trial, members are not always required to be present; e.g., at a trial by the MJ alone.
Swearing Reporter and Interpreter. Changed to reflect new provi- sions of Art. 42(a) concerning oaths for reporters and interpreters, in- cluding the possibility that they may have been previously sworn pur-suant to secretarial regulations.
61f (1) General rules as to legal qualifications of defense counsel. In subpara- graphs (a) and (b) and after “trial counsel,” the words “or any assistant trial counsel” were added so that the defense counsel for a special court-
AGO 20081A

Pam 27-2
Paragraph martial would be equally qualified if the assistant trial counsel has legal qualifications. A similar change was made in 6c.
The former last paragraph was deleted as unnecessary in view of the foregoing changes in (a) and (b) and because of the erroneous implica- tion that the defense counsel at a general court doesn’t have to be .legally qualified. See United States v. Kraskouskas, 9 USCMA 607, 26 CMR 387 (1958).
A.scertaining legal qualifications of counsel for the defense. A refer- ence to 48a was added to emphasize that the defense counsel at a general court-martial and a BCD SPCM must be legally qualified.
Action when defense counsel is not legally qualified. This paragraph was rewritten to simplify and clarify its provisions. New provisions have been added stating that a non-lawyer may not represent an accused before a GCM or BCD SPCM. See notes to 48a.
Announcement of request for trial by MJ alone. New paragraph which establishes trial procedure to allow accused to announce request for trial by MJ alone which parallels announcement of similar request for enlisted membership.
Conforming changes and has been re-lettered from 61g.
The former 61h was changed to reflect the new provisions of Art. 42(a) concerning oaths for court-martial personnel.
Assembly of the court. Replaces former i which related to “convening of court” with a paragraph which defines “assembly.” Since certain rights are terminated by “assem.bly” .(Articles 16, 23(c), and 29(e)), it was necessary to have a clearly definable point of “assembly.'” The point in the procedure after the jurisdictional prerequisites of the court-martial have been verified on the record was chosen as the best point for “assembly.” The practice of allowing the accused one final opportunity to request EM and trial by the MJ alone just prior to terminating the right to so request has been retained in the interest of fairness and orderly procedure.
Applicability to Article 39(a) sessions. This is a new paragraph to insure that the jurisdictional facts have been verified on the record of any Art. 39 (a) session.
Conforming changes and added the statutory language of “rele-vancy.”
Disclosing grounds for challenges. Rewritten to comply with new Art
41. A new third sentence was added to reinforce and emphasize, not change, this paragraph as interpreted by the Court of Military Appeals in United States v. Richard, 7 USCMA 46, 21 CMR 172 (1956), which was that only the ultimate ground for challenge need be disclosed.
The example in the third unnumbered paragraph was deleted to avoid possible conflict with United States z7. Witherspoon, 391 U.S. 510 (1968).
The fourth paragraph is new. It points out the problem resulting from the disclosure of derogatory information, and it recognizes that a member of the court may be examined out of the presence of the court. See United States v. Talbott, 12 USCMA 466, 31 CMR 32 (1961). This provision was expanded and strengthened for cases in which an MJ is sitting since the MJ rules finally on challenges.
AGO 20081A

Paragraph
62c Provision was added to encourage early disclosure of possible chal- lenges for cause to insure orderly procedure.
Conforming changes to new Act recognizing power of MJ to rule on challenges and the possibility of Art. 39(a) sessions. The fourth sentence states that the “military judge or the president of a special court-martial without a military judge should” rather than “may” permit a challenge for cause at any stage of the proceedings as failure to allow the challenge could be reversible error.
The standard for disqualification of a judge who previously sat on the same or a closely related case is personal bias or prejudice and not prejudgment at the prior hearing which was based on evidence therein adduced. By not automatically disqualifying the MJ on rehearing, it is possible to use him again on a rehearing. This change recognizes the increased authority and judicial stature of the MJ and his capacity to judge issues impartially. Cf. Craven v. U.S., 22 F2d 605; Gallarelli v. U.S., 260 F2d 259. If it is to be presumed that a jury will pay no attention to evidence brought out and ordered stricken or to evidence which the jury is instructed to disregard, it is even more reasonable to trust a judge to ignore non-evidentiary matter. See 57a(2). Cf. U.S. v. Camino, 321 F3d 590,511.
Challenges for cause-grounds for. In the second sentence, “facts which may constitute grounds for challenge” was substituted for “facts constituting grounds for challenge” to avoid any implication that the examples establish grounds for challenge as a matter of law. The first example concerning an MJ of the court which first heard the case was deleted, United States v. Broy, 15 USCMA 382, 35 CMR 354 (1965 and 62f (10) ). The sixth example, formerly seventh, was limited to where prior participation in a closely related case was as a member or counsel because prior participation as an MJ would not of itself be a ground for challeng- ing the MJ. The eighth example relating to conscientious scruples was deleted for the reason stated in note to 62b.
Inquiry as to eligibility of MJ. The fact that the MJ of a GCM must be designated and assigned in accordance with Art. 26(c) has been added as the 5th ground of eligibility of the MJ.
The word “qualifications” as used in the penultimate sentence includ- ing designation, assignment, and certification as well as status as an attorney.
This paragraph was revised to recognize the new power of the MJ to determine the relevancy and validity of challenges (Art. 41). The MJ may no longer be questioned under oath with regard to a suspected ground for challenge. Such a requirement would be anomalous in view of the fact that the MJ rules finally on challenges and has already sworn to perform duties of the MJ faithfully.
Deliberation and voting on challenges by an SPCM without an MJ.
The second sentence, which provides that a court should be instructed on the applicable law and procedure in deciding challenges, is new. See United States v. Cleveland, 15 USCMA 213, 35 CMR 185 (1965). “Should” was used instead of “shall” to insure that a failure to instruct would be tested for specific prejudice instead of general prejudice.
AGO 20081A
CHAPTER 12
PLEAS AND MOTIONS

Paragraph 66a Pleas. 66 was divided into two subparagraphs, a and b. The first sentence of this subparagraph is the-same as the second sentence of 66, and the substance of the second sentence was taken from the s,econd paragraph of 66.
Motions. The first sentence, which defines a motion, is new. Except for the material .in 66a and the deletion in the last sentence of words which described the reference of matters before trial to the convening authority as an administrative procedure, this subparagraph incorporated the material in the former 66 and the former first paragraph of 67a. In regard to the deletion, the convening authority is carrying out a judicial function on when he acts on a defense pretrial request for a psychiatric examination. See United States v. Nix, 15 USCMA 578, 36 CMR 76 (1965).
Also provides that motions for appropriate relief should be made prior to conclusion of 39(a) session or plea, whichever is earlier. See 67b.
Defenses and objections which may be raised. The former first para- graph was transposed to 66b. See comment on 66b.
Motions for appropriate relief must be raised prior to conclusion of any Art. 39(a) session held prior to assembly or may be considered waived. This parallels Rule 12 of the Federal Rules of Criminal Proce- dure. Relief from waiver for good cause is unchanged.
Form and content of motion. The first sentence, which stated that a motion raising a defense or objection should include all defenses and objections, was deleted as it incorrectly implied that all defenses and objections must be raised at one time by a single motion. The second sentence of the first paragraph was transposed so that it is now the last sentence of this subparagraph. These changes resulted in this subpara- graph being one paragraph instead of two.
Time of making motions. All motions should be raised at an Art, 39(a) session held prior to assembly even though failure to so raise would not constitute a waiver except for those motions covered in 67b.
In the first sentence of the second paragraph the references, which made this sentence applicable to motions based on res judicata and which gave motions for a finding of not guilty and motions to’dismiss based on res judicata as examples of “motions predicted upon the evidence,” were deleted. See comments on 71. In the last sentence of the second paragraph, “delay” was substituted for “dismiss” as lack of mental capacity at the time of trial should not terminate the case. See United States u. Williams, 5 USCMA 197, 17 CMR 197 (1954); United States v. Lopez-Malave, 4 USCMA 341,15 CMR 341 (1954).
AGO 20081A

Pam 27-2
Paragraph 67e Paragraph was changed to incorporate the concept of an MJ at an SPCM. It deletes the requirement of the MJ ruling before the members on a motion for a finding of not guilty since his ruling thereon is no longer subject to objection.
The second sentence is new, and provides that motions should be ruled on before the members deliberate on findings. The fourth sentence is new and recognizes that the MJ may direct hearings outside the presence of the members of the court. The sixth sentence is new and delineates when counsel may and may not refer to facts of other pertinent cases when arguing a motion before the members. See United States v. Bouie, 9 USCMA 228 26 CMR 8 (1958).
Effect of ruling on motion. The fourth paragraph was rewritten. The former second sentence of the fourth paragraph, which stated that “as to motions granted by the court which do not amount to a finding of not guilty, the convening authority may, if he disagrees, return the record of trial to the court. . . .(Art. 62 (a),” was too broad. It did not recognize that Article 62(a), which is set forth in the new first sentence of the fourth paragraph, addresses itself only to situations where a specification has been dismissed and the ruling does not amount to a finding of not guilty. The former fifth sentence of the fourth paragraph, which was deleted, provided :
If the convening authority finds that the action of the court was proper but that the defect raised by the motion can be cured, he will take appropriate action to remedy the defect and return the record to the court for trial as above indicated.
This was incorrect as to motions to dismiss except when the convening authority can cure a specification which was dismissed because of failure to allege an offense and return it to the same court. There is no “defect” which can be remedied if the dismissal is because of the running of the statute of limitation, former jeopardy, pardon, constructive condonation of desertion, former punishment, promised immunity, speedy trial, or lack of jurisdiction. A new second sentence was added to insure a fair proce- dure before returning a record to the court. A new fourth sentence was inserted in the fourth paragraph to point out specifically that the conven- ing authority may not direct reconsideration of a ruling to grant appro- priate relief or a continuance. See United States v. Knudson, 4 USCMA 587, 16 CMR 161 (1954). The sixth sentence of the fourth paragraph is new. In the last sentence of the fourth paragraph, which was part of the former third sentence of this paragraph, the example of a motion in which a disagreement could arise as to a question of fact was changed
from one concerning an objection to trial on the ground of lack of mental capacity at time of trial to one concerning condonation of a desertion. This change was made because the necessary prerequisite if a dismissal before the convening authority may direct a reconsideration would not be met in the former example as sustaining the motion based on lack of mental capacity should result in a continuance, not a dismissal.
In the first sentence of the fifth paragraph, which corresponds to the sixth sentence of the fourth paragraph in MCM, 1951, “wherein the action of the court operates as a bar to further prosecution” was deleted as appro- priate orders should be published in all cases where the record is not
AGO 20081A
Pam 27-2

Paragraph returned for trial. The removal of this qualification as to when orders should be published made the former last two sentences of this paragraph redundant and they were deleted.
The last paragraph is new, and it provides the procedure to be fol- lowed after a motion for appropriate relief is granted.
Inadmissible defenses and objections. This subparagraph was deleted as unnecessary and possibly misleading, for example it may have implied that a motion to dismiss for lack of speedy trial could not be made before the plea.
A reference to paragraph 57 was added.

Motions to dismiss because of lack of jurisdiction. The last two sent- ences were transposed from 71b as they belong in this discussion of jurisdiction rather than res judicata.
Failure to allege an ogense. The application of the first sentence was broadened by adding the words “triable by court-martial.” See United States v. French, 10 USCMA 171, 27 CMR 245 (1959), where the court held that a capital offense, the violation of the Espionage Act, cannot be tried as a violation of Article 134 even though it could be considered as service discrediting conduct.
Statute of limitations. The subject matter of Chapter XXIX, entitled Matters of Defense, is new to that chapter; and it contains the discussion of the substantive law relative to the statute of limitations. For this reason much of the substance of the first and third paragraphs and all of the fourth paragraph was transposed to 215d. The second paragraph, which stated that Article 43 would not revive liability to trial of any offense barred by the running of the statute of limitations before 31 May 1951 but that where the offense was not barred the statute of limitations shall be governed by Article 43, was deleted because of its limited applica- tion at this time.
The first paragraph is a rewrite of information that formerly was in the first sentence of the first paragraph and the second sentence of the third paragraph. In the first sentence of the second paragraph after “when it appears from the charges,” the words “or from the evidence” were inserted so that the direction to advise the accused is applicable in either event. The third sentence of the fifth paragraph, which stated “this action should, as a rule, be taken at the time of arraignment,” was deleted as it was too restrictive. Except for these changes, the second paragraph is substantially the same as the former fifth paragraph; the third paragraph is the same as the former sixth paragraph; the fourth and fifth paragraphs are substantially the same as the former seventh except that in the last sentence of the fifth paragraph “should advise” was substituted for “must advise” and, as the failure to follow the procedure set forth does not necessarily result in a waiver, “may constitute” was substituted for “constitutes.”
Former jeopardy. The discussion of the substantive law relative to former jeopardy is now contained in 215b. For changes in the substantive discussion, see the comments on 215b. The first sentence is in the exact language of Article 44(a). The substance of the last two sentences was contained in the former last paragraph.
AGO 20081A

Paragraph MCM, 1951 was deleted as unnecessary. It read as follows: “Occasion for making this explanation and statement frequently arises in desertion cases when .the accused, after pleading guilty testifies or states in effect that throughout his unauthorized absence he had the intention of return- ing.” The fourth, formerly fifth, sentence of this paragraph was changed to make it discretionary for the MJ or president of a special court-martial without an MJ to permit an accused to change his plea of guilty to not guilty instead of this being a change that the accused “should be permit- ted.” However, if the accused was advised that he could make this change,
it could be a prejudicial error to refuse him the permission to change his plea,. See Uniteld States v.Politana, 14 USCMA 518, (522, 34 CMR 298, 302 (1964). Because of the nature of the summary court, the accused was
given the unqualified right to change a guilty plea before a summary court by the reference in the fifth sentence of this paragraph. The last sentence of this paragraph is new.
The former last paragraph was deleted as unnecessary because of 65a. It stated as follows: “One plea may be entered as applicable to all or to certain specified charges and specifications such as ‘Not guilty to all charges and specifications’.”
A new final paragraph has been added to provide for immediate entry of a finding of guilty where trial is before an MJ alone or an SCM. Provision is also made for entry of findings without vote where members are present if secretarial regulations permit.
Motions for finding of not guilty; res judicata. The title of this paragraph was “Motions predicated upon the evidence” but it was changed as it did not properly suggest the inclusion of the material in 71b relative to res judicata. Res judicata is not always raised by a motion and when it is this motion is not predicated on the evidence in the sense that a motion for a finding of not guilty is.
Motion for finding of not guilty. The fourth sentence of the second paragraph was rewritten. It had read, as follows: “If there is any sub- stantial evidence which, together with all proper inferences to be drawn therefrom and all applicable presumptions, reasonably tends to establish every essential element of an offense charged or included in any specifica- tion to which the motion is direded, the motion will not be granted.” “Substantial” was deleted, and the correct concept of such relevant evid- ence as la reasonable mind might accept as adequate to suppork a mnclusion is in the sentence as rewritten. As rewritjten, this sentence ayoids incorrect implications concerning considerations that should be given to the weight of the evidence and the credibility of witnesses. See Consolidated Edison Company v. National Labor Relations Board, 305 U.S. 197 (1938) ; United States v. Wapnick,202 F. Supp. 712 (E.D. N.Y. 1962).
A new last paragraph states that the MJ rules finally on a motion for a finding of not guilty. (See Art. 51(b) .)
Res judicata. This subparagraph was revised to a large extent. Only the most significant changes are discussed herein. The primary change is that res judicata has been expanded by providing that it is also applicable as a rule of evidence. Previously the Manual treated it solely as a complete “defense” to the offense in question, that is, as a bar to trial. Consistent with this modification, it was provided that the doctrine may be invoked
AGO 20081A
Pam 27-2

Paragraph proceeding. As the legal ramifications of this decision are far from set- tled, no attempt has been made to cover the point in this paragraph. See the dissenting opinion of Judge Kilday in Doughty.
The example contained in the first sentence of the second paragraph, except for editorial modifications, was contained in the former Manual. The example in the second sentence of the paragraph is new. It was taken from United States v.Smith, supra.
See, generally, O’Donnell, Public Policy and Private Peace-The Fi-nality of a Judicial Determination, 22 Mil. L. Rev. 57 (1963).
AGO 20081A

Paragraph
72b

AGO 200818
CHAPTER 13
MATTERS RELATED TO FINDINGS AND SENTENCE

Content of arguments. A prohibition was added at the end of the first paragraph against the citation of legal authorities and facts of other cases in arguments on the findings and sentence. United States v. Bouie, 9 USCMA 228, 26 CMR 8 (1958). Counsel are allowed to cite such authori- ties to the MJ trying a case alone.
A sentence was added at the end of the third paragraph indicating that the trial counsel should refrain from commenting on the exercise by the accused of his rights under Article 31 (b) (United States v. Hickman, 10 USCMA 568, 28 CMR 134 (1959)), the conduct of the defense at the Article 32 investigation (ACM 17545,Jackson, 31 CMR 654 (1961) ), and the probable effect of the court’s findings on community relations (United States v. Cook, 11USCMA 99,28CMR 323 (1959) ).
The first sentence of the last paragraph was qualified by the addition of a sentence containing two cross references. This was added to point out that there are restrictions on drawing inferences in some situations.
Ins$ructions to a court-martial with members. General. The MJ sitting alone is not required to instruct himself in ope; court. Art. 51(d) states that Art. 51 (c) relating to instructions on findings does not apply to a court-martial composed of an MJ alone.
This subparagraph was completely rewritten to set forth the general requirements for instructing on the issues as established in cases too numerous to permit full citation. Hlowemr, the significant cases consid- ered in redrafting the subparagraph are discussed hereafter. United States v. Smith, 13 USCMA 471, 33 CMR 3 (1963) and United States v. Bethas, 11 USCMA 389, 29 CMR 205 (1960) announce the requirements for instruction on elements of principal and included offenses and affirm- ative defenses. United States v. Jones, 13 USCMA 635, 33 CMR 167 (1963); United States v. Smith, supra; and United States v. Acfalle, 12 USCMA 465, 31 CMR 51 (1961) are illustrative of the fact that instruc- tions must be tailored to the facts and theories in an individual case. United States v. Clark, 1 USCMA 201, 2 CMR 107 (1952) deals with instructions on included offenses in issue. United States v. Ginn, 1 USCMA 453, 4 CMR 45 (1952) concerns instructions on affirmative de- fenses in issue. Of course, sua sponte instructions are not required on all affirmative defenses in issue. For example, a special alibi instruction is only required on request. See United States v. Moore, 15 USCMA 345, 35 CMR 317 (1965); United States v. Bigger, 2 USCMA 297, 8 CMR 97 (1953). United States v. McDonald, 6 USCMA 575, 20 CMR 291 (1955)
requires definition of terms which have special legal connotation. The re- quirement for limiting instructions when evidence is admitted for only a limited purpose is set forth in United States v. Lewis, 14 USCMA 79, 33 CMR 291 (1963) ; United States v. Back, 13 USCMA 568, 33 CMR 100
(1963);and United States v. Hoy, 12 USCMA 554, 31 CMR 140 (1961).
Pam 27-2
Paragraph Of special significance is the third sentence of the first paragraph which indicates that the elements of the offense, for instructional pur- poses, are those factual issues which must be determined by the members of the court on the question of the guilt or innocence of the accused. This definition was added so as to make it clear that no instruction is given when an element involves a strictly legal issue. For example, in the prose- cution of a violation of Article 92 for disobedience of an order, the ques- tion of the legality of the order, if no factual dispute concerning legality is involved is entirely a question of law for determination by the MJ or president of a special court-martial without an MJ. However, if the legal- ity of the order depends upon the resolution of conflicting facts, then this question of fact should be presented to the court-martial for determina- tion on the general issue. United States v. Carson, 15 USCMA 407, 35 CMR 379 (1965). For a discussion of other offenses to which the Carson holding probably applies, see Taylor and Barrett, A Supplement to the Survey of Military Justice, 32 Mil. L. Rev. 81 n. 48 (1966).
The third and fourth paragraphs were transposed from the former 73c because the matter contained in these paragraphs is more closely related to the other matter covered in 73a than it is to 73c as modified. The third paragraph was changed to provide for the possibility that findings might be entered on a plea of guilty without a vote in accordance with Article 45 (b) .
Charging the court. The initial language of this subparagraph was modified to conform with the increased scope of 73a and to indicate that the Article 51(c) charge is only required in cases where there is a not guilty plea. United States v. Lucas, 1USCMA 19, 1 CMR 19 (1951). The language “when appropriate, in cases in which a plea of guilty to all charges and specifications has been entered” was used because the practice in th’e Air Force is to prove the case and give Article 51(c) instructions even though there be no pleas of not guilty.
The last sentence, which formerly indicated that the Article 51(c) charge need not be explained, was deleted as unnecessary, and misleading. For instance, it has been held that “reasonable doubt” must be explained upon a request by counsel. United States v.Ofley, 3 USCMA 276, 12 CMR 32 (1953).
Military Judge’s summarizing and commenting upon the evidence. This subparagraph has been revised to limit its scope to the subject of sumrizing an’d commening upon the evidence. Accordingly, the former title “Additional instructions by the law officer” has been changed to one more descriptive of the new scope. The material contained herein, except for modifications discussed below, was formerly in subparagraph “(1) General” of 73c which is no longer subparagraphed. Some material in the former subparagraph (1) was moved to 73a. See the last paragraph of the discussion of changes in 73a concerning the matter that was moved. Additionally, the former first and fourth sentences of the first paragraph were deleted. They indicated, respectively, that the MJ was only required to give the instructions specified in Article 51(c) and that instructions on included offenses in issue were optional. These deletions were necessary to conform with changes in 73a and b and the changes in the concept of the obligation to instruct which have developed since the 1951 Manual was published.
AGO 20081A

Pam 27-2

Paragraph The words “simple and” were deleted before the word “orderly” in the second (former third) sentence of the first paragraph. Also, the words
“on each side of those” have been substituted for “that tends to support or deny” in this sentence. See United States v. Nickoson, 15 USCMA 340, 344, 35 CMR 312, 316 (1965).
The prohibition in the former last sentence of the third paragraph of 73c(l) against counsel or the accused interrupting the MJ while instruct- ing the court was not retained. This rule was not always followed in all instances nor was it always desirable that it be followed. Interruption as to obvious mistakes in instructions are often beneficial to the MJ. Also, MJ’s have the inherent power to handle the problem, and it should be left entirely to their discretion.
The overall effect of changing the scope of this subparagraph coupled with some of the changes mentioned above was to remove the prior indi- cation that there were different standards for the MJ and president of a special court-martial without an MJ in instructing the court.
Preparing instructions. Subparagraph d is new, but with modifica- tions it contains that matter which was formerly in 73c(2). The scope of the subparagraph has been enlarged so as to apply to the president of a special court-martial and to pertain to all instructions rather than to just what was previously referred to as “additional instructions.”
The second and third sentences of the first paragraph are new addi- tions. See United States v. Sellers, 12 USCMA 262, 30 CMR 262 (1961) ; United States v. Walker, 7 USCMA 669, 23 CMR 133 (1957), and the cases cited therein. The last portion of the first paragraph was modified by adding an admonition that the source of a requested instruction should not be identified (United States v. Wynn, 11USCMIA 195, 199, 29 CMR 11,15 (1960); United States v. Shaughnessy, 8 uSCMA 16, 421, 24 C’MR 226, 231 (1957)), and by requiring that arguments by counsel on pro- posed instructions be recorded and incorporated in the record (United States v. Lampkins, 4 USCMA 31, 15 CMR 31 (1954)). The statement that members of a GCM would be excluded during argument on a pro-posed instruction was expanded to require that members would be ex-cluded if an MJ was present whether at a GCM or SPCM.
The second paragraph is a new addition which requires that any written instructions taken into closed session must be appended to the record of trial as an appellate exhibit. United States v. Caldwell, 11 USCMA 257,29 CMR 73 (1960).
Reasonable doubt. The last sentence of the first paragraph, which admonished a court that acquits because an accused may be innocent, was deleted as neither necessary nor desirable.
The discussion of prima facie proof, formerly contained in the fourth and fifth sentences of the second paragraph, was deleted. United States v. Simpson, 10 USCMA 543,28 CMR 109 (1959).
The fourth paragraph was completely revised so as to no longer infer that strong evidence is required in a case proved by circumstantial evi- dence than in one proved by direct evidence. The Supreme Court has held that an instruction that circumstantial evidence must exclude every reason- able hypothesis of innocence is confusing and incorrect when a jury is properly instructed on the standards of reasonable doubt. Holland v.
AGO 20081A
Pam 27-2
Paragraph United States, 348 U.S. 121, 139-140 (1954). See also United States v. Mason, 8 USCMA 329,332,24 CMR 139,142 (1957).
This paragraph was modified to conform with the amendments to Art. 45 and Art. 52. The title was changed to exclude those cases tried by the MJ alone.
This subparagraph was modified to conform with the amendments of Art. 45 and Art. 52 concerning entering findings without vote and the number of votes required to reconsider.
Requesting additional instructions on findings. The first sentence of the second paragraph modified so as to no longer indicate that the trial counsel of a special court-martial without an MJ obtains additional infor- mation on the law from the convening authority.
Court-Martial with an MJ and members. This paragraph was revised to delete provision permitting the MJ to enter closed session to assist court-martial in putting its findings in proper form (Art. 39) and ex-panded to cover all courts to which an MJ has been detailed. The para- graph provides a careful procedure for an MJ to assist the members in open court with the findings.
A paragraph for the MJ alone was added for completeness.
Reason for findings. This subparagraph, which formerly provided that a court could advise the convening authority of the reasons for its findings, now provides simply that no finding should include any indication of the reasons for making it. The procedure formerly provided is archaic and analogous to a special verdict which is not the practice in the federal courts. See 23A C.J.S. Criminal Law, 8 1399 n. 13 (1961). Additionally, the former subparagraph inferred command influence as it could lead a court member to believe that he must justify his action to the convening authority. See United States v. Schultx, 8 USCMA 129, 23 CMR 353 (1957) (concurring opinion). The paragraph applies only to findings by a court with members. The MJ alone may set out the reasons for his decision by means of special findings or a memorandum of decision.
Announcing the findings. Material was added at the end of the first paragraph to explain how an error made in announcing the findings may be remedied before conclusion of a trial. United States v. Downs, 4 USCMA 8, 15 CMR 8 (1954).
A new paragraph providing for the MJ alone announcing his findings in open session was added.
Statute of limitations.This subparagraph was modified so it no longer indicates that the invoking of the statute of limitations by an accused after findings of guilty acts as a bar of punishment. It was inconsistent to indicate that it was invoked in bar of punishment and determined as a motion to dismiss. NCM-01668, Brand, 29 CMR 668 (1959), is a well reasoned opinion as to why a conviction in this event cannot stand. A provision has been added to the second sentence of the first paragraph as to the action to be taken by the MJ, or the president of a special court-martial without an MJ in this situation.
This is a new subparagraph which deals with findings by the MJ who
is trying a case alone. He decides the guilt or innocence of the accused and,
in addition, makes specia! findings on request. Special findings are required
AGO 20081A

Pam 27-2

Paragraph only if requested but they may be made without request. United States v. Devenere 332 F2d 160; Sullivan v. United States, 348 U.S. 170. Superfluous findings are not required when findings of facts in issue are made. Cesario
v. United States, 200 F2d 232. Special findings are appropriate not only on findings on the elements of the offense but also on factual questions placed in issue, such as mental responsibility and special defenses. In order to insure orderly procedure, requests for special findings must be submitted prior to the announcement of general findings and must be specific as to the issue which is sought to be answered. The MJ may require that a request for special findings be submitted in writing in any case in which he deems it desirable in order to insure clear understanding of the request. A party is entitled to only one set of special findings. Special findings are made after the making of general findings and they may not be required in the course of a trial prior to that time. Benchwick v. United States 297 F2d
330.
The delayed entry of special findings after general findings have been made is permissible. Cf. United States v. Ginxburg 338 F2d 12.
The comment following Section 4623, Federal Practice and Procedure by Barron and Holzoff observes that “In criminal cases requests for special findings of fact are made only by the defendant, to save the question of sufficiency of evidence for review on appeal. If a defendant is acquitted, the judge is not obliged to make special findings.”
Amended to take account of the MJ sitting alone and to conform to 74i.
Presentation of evidence of previous convictions during the present- encing procedure. In the third sentence of the first paragraph, the limita- tion has been removed which required that evidence of previous convictions must relate to offenses committed “during a current enlistment, voluntary extension of enlistment, appointment, or other engagement or obligation for service of the accused.” Also, the limitation that the offenses be com- mitted within three years has been raised to six years. Thus, the only remaining limitation is that the previous convictions relate to offenses committed during the six years next preceding the commission of any offense of which the accused is convicted at the trial where they are introduced. The former current enlistment limitation was removed because it was felt that the new rule is more equitable from the standpoint that there is no good reason why an accused who has recently had the benefit of reenlistment should be in a more favorable position than an accused who has not had the opportunity of such a benefit. In making the change, its effect, on the additional punishment provisions of the second paragraph of section B of 127c, be broadening the admissibility of previous convictions was fully recognized and that paragraph has been modified accordingly. Here also, it was felt that a more equitable result was produced by removal of the current enlistment limitations.
Consistent with the change’ discussed in the above paragraph the for- mer fourth sentence of the first paragraph and the sentence formerly comprising the second paragraph were deleted. They were no longer appli- cable as they prescribed rules which related only to the limitation that was deleted from the third sentence of the first paragraph.
The second sentence was added to the present second (former third) paragraph to make it clear that a previous conviction is not admissible until the review of the case has been fully completed. See United States v.
AGO 20081A
Pam 27-2
Paragraph Pope, 5 USCMA, 29,17 CMR 29 (1954) ;United States v. Engle, 3 USCMA 41, 11CMR 41 (1953). This sentence was added to explain the rule con- tained in the first sentence of the paragraph and makes no change in the current practice. The added sentence was taken from the back of DD Form 493 (1962), Extract of Military Records of Previous Convictions. It should
be noted that the regulations of the various services differ as to requiring an entry in personnel records to show the completion of review of court- martial cases. When such an entry is required by regulation or other legal authority on a document and the document or extract thereof which is introduced does not show the entry, it is inadmissible, unless other evidence of the final review is introduced, because under the presumption of regular- ity it must be presumed that the required review has not been accom-plished. United States v. Engle, supra. However, if an entry as to final review is not required by regulation or other legal authority, it may be presumed after a reasonable time that the required review has been accom- plished and the accused then has the burden of contesting the finality of the previous conviction. United States v. Larney, 2 USCMA 563, 10 CMR 61
(1953).
The last sentence of the second paragraph was added to remove the argument that a pending request for the Judge Advocate General to exer- cise his new authority under Art. 69 might prevent the admission of a conviction which is otherwise final. See llOA.
The last paragraph was substantially modified. The first three sen- tences cover the subject matter previously contained in the first two sen- tences. However, these sentences were modified and rearranged. In the present first sentence, “record of previous convictions” was added because this is the document which is usually used in proving previous convictions. Also, in this sentence, “service record” was changed to “personnel records” to conform with the same change in 32f(4) (c). For the reason for this change, see the discussion as to that subparagraph of chapter VII.
The former next to last sentence was deleted as it was legally incorrect in indicating that “in the absence of objection, an offense may be regarded as having been committed during the prescribed three-year period unless the contrary appears. United States v. Marshall, 15 USCMA 475, 35 CMR 447 (1965).
The present last sentence is a new addition based on United States v. Kiger, 13 USCMA 522,33 CMR 54 (1963).
This is a new paragraph which broadens the information to be consid- ered by the sentencing agency in a court-martial. It places upon the Military Judge the burden of determining the relevance of items presented to him ahd gives him broad discretion in determining relevance and in ruling on objections to items presented. The procedure contemplated by this change is similar to that under Federal Rule of Criminal Procedure 32, dealing with presentencing reports, but it limits items which may be con- sidered to items contained in official records and accordingly puts the accused on notice of what may be considered against him.
Argument on the sentence. This new subparagraph was added for the purpose of providing for argument on the sentence. It has been held that this argument is permitted. United States v. Olsen, 7 USCMA 242, 22 CMR 32 (1956). It is indicated that improper argument on the sentence includes raising an inference that counsel speaks for the convening or a higher
AGO 20081A

Pam 27-2

Paragraph authority and referring to the views of these authorities (United States v. Carpenter, 11USCMA 418, 29 CMR 234 (1960) ; United States v. Lackey, 8 USCMA 718, 25 MCR 222 (1958)), referring to policy directives on punishment (United States v. Davis, 8 USCMA 425, 24 CMR 235 (1957) ; United States v. Estrada, 7 USCMA 635, 23 CMR 99 (1957); United States v. Fowle, 7 USCMA 349,22 CMR 139 (1956)), and referring to any quantum of punishment authorized for offenses in excess of that which can be lawfully imposed by the court which is trying a case (United States v. Crutcher, 11USCMA 483, 29 CMR 299 (1960) ; United States v. Eschmann, 11USCMA 64,28 CMR 288 (1959) ) .
The matter as to whether the prosecution or defense has opening and closing argument has been left to the discretion of the MJ, or the president of a special court-martial without an MJ. On this subject, see CM 412244, Wilson, 35 CMR 576 (1965) ; ACM 9406, Weller, 18 CMR 473, 483 (1954).
Basis for determining the sentence. This subparagraph was substan- tially revised. The former subparagraph (3), which concerned the effect of previous convictions on determining the proper measure of punishment, was deleted as inconsistent with the theory that the matter of an appropri- ate sentence is solely for the discretion of the court. See United States v. Slack, 12 USCMA 244,30 CMR 244 (1961). The former subparagraph (4), which indicated that sentences should be relatively uniform and that more severe sentences may be necessary to meet the needs of local conditions, and the former subparagraph (5), which indicated that inadequate sen- tences tend to bring the armed forces into disrepute, were deleted for the same reason as subparagraph (3). See also United States v. Cook, 11 USCMA 99 28 CMR 323 (1959) ; United States v. Mamaluy, 10 USCMA 102, 27 CMR 176 (1959). The subsequent portions of this subparagraph were renumbered to compensate for these deletions.
The second sentence of subparagraph (2), which indicated that the maximum sentence should be reserved for an offense aggravated by the circumstances or where there is evidence of previous convictions of similar or greater gravity, was deleted. The court does not know the facts and circumstances surrounding previous convictions, and this sentence was in- consistent with the theory that the matter of an appropriate sentence is entirely discretionary with the court. See United States v. Slack, supra. To compensate for this deletion a new clause was added after the word “therein” in the first sentence.
The present second, third, and fourth sentences of subparagraph (2) are new additions. They provide new rules as to what matters may be considered by the court members in determining an appropriate sentence. The rule that the court may consider evidence of other offenses or acts of misconduct properly introduced at any stage of the trial even if it does not meet the requirement of 75b(2) and even if it was introduced for a limited purpose on the merits was apparently the law before the decision in United States v. Turner, 16 USCMA 80, 36 CMR 236 (1966). See United States v. Plante, 13 USCMA 266, 273-274, 32 CMR 266, 273-274 (1962) ; United States v. Statham, 9 USCMA 200, 203, 25 CMR 462, 465 (1958) ; United States v. Blau, 5 USCMA 232, 243-244, 17 CMR 232, 243-244 (1954). It is fully recognized that the Court in Turner stated :
“We hold, therefore, as our precedents require, that, even assum- ing admissibility of the stipulated fact . . ., it was the duty of the law

AGO 20081A

Pam 27-2
Paragraph
officer, sua sponte, to instruct the court that such evidence of other
misconduct could not be considered by it on the sentence or for any
purpose other than that for which it was received.”

This quotation is followed by citations to United States v. Conrad, 15 USCMA 439,35 CMR 411 (1965) ;United States v. Gewin, 14 USCMA 224, 34 CMR 4 (1963) ; United States v. Back, 13 USCMA 568, 33 CMR 100 (1963) ; United States v. Bryant, 12 USCMA 111, 30 CMR 111 (1961). However, study of the cited cases indicates that they did not necessarily require the result in Turner. In Conrad, the error went to findings because the law officer’s limiting instructions, under the particular facts of the case, were not sufficiently specific. Gewin stands for the proposition that when other offenses are improperly admitted they should not be considered on the sentence. In Back, the error went to the findings as no limiting instruc- tion was given in a situation where there should have been one. Bryant stands for the principle that when evidence is admitted for a limited pur- pose, a request for instruction is not required and that a limiting instruc- tion must be given sua sponte. Regardless, however, Turner and the cases that followed were based on the 1951 Manual provisions, particularly para- graph 75b (2). See United States v. Rodriguez, 17 USCMA 54, 37 CMR 318 (1967) ; United States v.Kirby, 16 USCMA 517, 37 CMR 137 (1967). The President is authorized under Article 36(a) to prescribe the rule as to consideration of other offenses and acts of misconduct, and even with the changes in the first paragraph of 75b (2),the military procedure will be more lenient than that followed in the Federal system. For a more detailed discussion of these matters, see the first paragraph of the discussion of changes in 75b(2), supra. The added rule is both practical and logical. The primary purpose of limiting instructions is to foreclose the possibility of convicting the accused on the basis that he is a “bad man” with criminal dispositions or propensities rather than on the evidence relevant to the offenseehaxged. United States v. Hoy, 12 USCMA 554,556,31 CMR 140,142 (1961). The same consideration does not exist as to sentence. The fact that the accused is a “bad man” is the very type of thing that should be considered in determining an appropriate sentence. Also, it is highly un- likely that court members can ever erase other acts and offenses from their minds once they are heard. As a matter of fact, a limiting instruction tends
I

to overemphasize the importance of prior misconduct.
Additions were made in what is now the fifth sentence of subpara- graph (2) which provide that a court in determining an appropriate sen- I teme ‘may consider a gui’lty plea QS a mitigating faotor (,see United States v. Rake, 11 USCMA 159, 28 CMR 383 (1960)), evidence of mental impair- , ment or deficiency as provided in 123, and any evidence in mitigation.
The subject matter now contained in subparagraph (5) was formerly in subparagraph (8). However, the subparagraph was substantially re- vised. The example in the first paragraph was expanded by showing that if the accused, in the example, was convicted of absence without leave instead of desertion, the unauthorized absence and the escape would not be sepa- rate for punishment purposes. United States v. Welch, 9 USCMA 255, 26 CMR 35 (1958).
What was formerly the last sentence of the one paragraph comprising
(8) was deleted as it erroneously indicated that an included offense could not contain an element not contained in the principal offense. Although this is a general rule, it is not always legally correct. See United States v.
AGO 20081A
Pam 27-2

Paragraph
Malone, 4 USCMA 471, 16 CMR 45 (1954) ; United States v. Duggan, 4 USCMA 396, 15 CMR 396 (1954) ; United States v. Craig, 2 USClViA 650, 10 CMR 148 (1953); United States v. Davis, 2 USCMA 505, 10 CMR 3 (1953).
The second paragraph contained in subparagraph (5) is a new addi- tion which shows that there are other rules which must be considered besides the general rule before it is finally determined whether or not offenses are separate. These rules were announced respectively in United States v. Redenius, 4 USCMA 161, 15 CMR 161, (1954) ; United States v. Kleinhans, 14 USCMA 496, 34 CMR 276 (1964) ; United States v. Beene, 4 USCMA 177,15 CMR 177 (1954) ;and United States v. Soukup, 2 USCMA 141,7 CMR 17 (1953).
The third paragraph of subparagraph (5) is also a new addition. It states how the maximum punishment is determined when an accused is convicted of offenses which are not separate.
The titles were changed to indicate that the procedure described ap- plies only to court members and not to the MJ sitting alone.
Instructions on punishment. The first sentence was modified to require instructions on the maximum punishment. United States v. Turner, 9 USCMA 124,25 CMR 386 (1958).
The second sentence is new and requires the MJ to tailor his instructions on the sentence to the law and the evidence in the case. United States v. Wheeler,17 USCMA 274,38 CMR 72 (1967).
The third and fourth sentences are new additions. They indicate that the court will not be advised of the maximum punishment that would be au- thorized except for limitations on the sentence because of the jurisdiction of the court or because the case is a rehearing or new or other trial. It is further provided that the court will not be advised of the reason for any sentence limitation. United States v. Green, 11 USCMA 478, 29 CMR 294 (1960); United States v. Eschmann, 11 USCMA 64, 28 CMR 288 (1959) ; United States v. Jones, 10 USCMA 532,28 CMR 98 (1959) .’
The fifth sentence is new and it requires that the court be advised of the reason when additional punishment is authorized because of the provi- sions of 127c, Section B. United States v. Rake, 11 USCMA 159, 28 CMR 383 (1960) ; United States v. Hutton, 14 USCMA 336, 34 CMR 146 (1964) ; United States v. Yokorn, 17 USCMA 270,38 CMR 68 (1967).
The next to the last sentence was revised to remove the former infer- ence that the president of a special court-martial without an MJ does not rule finally on the question of instructions. Art. 51. See United States v. Bridges, 12 USCMA 96,30 CMR 96 (1961).
Delibe?,ation and voting on the sentence. Two sentences were added at the end of the third paragraph to provide for action to be taken when the required portion of the court members cannot agree on a sentence. United States v. Goffe,15 USCMA 112, 35 CMR 84 (1964) ; United States v. Jones, 14 USCMA 177,33 CMR 389 (1963).
Form of sentence. The for.mer last sentence was deleted. That sentence authorized the court to make a brief statement of the reasons for a sen- tence for inclusion in the record. This deletion was made for the same reasons given for a similar change in 74f (3).
76b (4)
AGO 20081A
Pam 27-2

Paragraph Three sentences were added at the end of the subparagraph which
prescribe that the MJ may not enter a closed session of the court during sentence deliberations and how the court should properly obtain additional instructions on the sentence when required. United States v. Keith, 1 USCMA 493, .4 CMR 85 (1952). See United States v. Linder, 6 USCMA
669,20 CMR 385 (1956).
Announcing sentence. Four sentences were added before the last sen- tence of the first paragraph to prescribe the method of correcting an incor- rectly announced sentence before a court disperses. United States v. Liber-ator, 14 USCMA 499, 34 CMR 279 (1964) ; United States v. Robinson, 4 USCMA 12, 15 CMR 12 (1954). See United States v. Nicholson, 10 USCMA 186, 27 CMR 260 (1959) ;United States v. Long, 4 USCMA 101, 15 CMR 101 (1954).
Procedure for reconsideration of the sentence. This is a new subpara- graph reflecting the new Article 52(c).
When reconsidering a sentence which is not mandatory but which is legal in part and illegal in part, the maximum sentence that may be ad- judged is the legal portion of the original sentence. See United States v. Nicholson, szLpra; United States v. Lang, supra.
Provides for announcement of sentence in open session by MJ alone.
Conforming changes which recognize that the MJ may adjudge the sentence.
New subparagraph which recognizes the right of an accused whose sentence includes confinement at hard labor to apply for deferment of the service of confinement.
AGO 20081A
Pam 27-2

Paragraph 78 79a
CHAPTER 14

PROCEDURE OF INFERIOR COURTS-MARTIAL
Revised to recognize that an MJ may be detailed to an SPCM.
Function of the summary court-martial. The former second sentence, which stated that in the trial of the case “the summary court represents both the Government and the accused,” was deleted. The sentence was considered unnecessary as the matter is adequately covered in the present second sentence. The present second (former third) sentence was modified so as to make it applicable in guilty plea cases. An accused is entitled to the protection provided by this sentence whether or not there is a guilty plea.
This incorporates the right, now provided by Art. 20, of a person to object to trial by SCM even after he has refused non-judicial punishment.
Arraig~ment and pleas before a summary court-martial. The former first paragraph was divided into two paragraphs, and the first paragraph is the same as the first three sentences of the former first paragraph. The remainder of the first, now second, paragraph, which gave the explanation to be made to the accused when he pleads guilty, was changed to conform to that for general and special courts-martial. See the comments on 70b (2).
The third paragraph, which gives the standard to be used in determin- ing whether to accept a guilty plea, is new.. This standard conforms to that for general and special courts-martial. See the comment on 70b (3).
Presentation of evidence at the summary court-martial. In the first sentence, “in the interest of justice” was deleted before the word “follow- ing” on the basis that it was an improper limitation on presenting evidence in guilty plea cases. At the end of the third sentence, “whether on the merits or in extenuation or mitigation,” was deleted as the procedure for presenting matters in extenuatioh and mitigation is covered in 79d(4).
This subparagraph has been amended to include the requirement that the summary court, if the sentence imposed includes confinement at hard labor, advise the accused of his right to apply for deferment of confine- ment. See Art. 57 (d) and 88f.
Record of the summary court-martial. The first sentence is a new addition which was added to provide flexibility. See the discussion of changes made in subparagraphs 90e and 91c of Chapter XVII. The former first sentence, which was a reference to “appendix 11for form of record of trail by summary court,” was deleted. The former second sentence was deleted.

AGO 20081A
Pam 27-2

Paragraph 80b
81 b (3)
AGO 20081A

CHAPTER 15

PROCEDURAL ASPECTS OF REVISION PROCEEDINGS, REHEARINGS, AND NEW OR OTHER TRIALS
Revision. In connection with a new MJ or new member of the prosecu- tion or defense being “sworn,” a parenthetical phrase was added to cover the possibility that they had been previously sworn.
It further provides that proceedings in revision in a trial conducted by MJ alone may be held only by the MJ who was present at the conclusion of the case.
Revision procedures. The second sentence of the first paragraph is a new addition which indicates that the MJ, or president of a special court-martial without an MJ should give the necessary instructions to accomplish the revision action. It was added to remove the inference that the MJ instructs at a revision proceeding only on request.
Also in the first paragraph, the words “If necessary” were added to the sixth sentence and the words “open and” were deleted between “will” and “announce” in the seventh sentence. This was done because it may not always be necessary to close to accomplish the revision, for example, to correct “a slip of the lip” on a sentence announcement.
Procedure for rehearings and mew and other trials. This subpara- graph was completely revised. It now distinguishes between rehearings in full, rehearings on the sentence, and combined rehearings, and it sets forth the procedure to be followed at each type of rehearing. The new material was necessary primarily because rehearings on the sentence have been frequent since the publication of the former Manual in 1951, and they were not provided for in that Manual. See, e.g., United States u. Kepperling, 11USCMA 280, 29 CMR 96 (1960) ;United States v. Field, 5 USCMA 379, 18 CMR 3 (1955). Some additions which are particularly worthy of note are discussed below.
Procedure for rehearings on sentence only. The purpose of the fifth sentence is to emphasize that the former testimony exception to the hear- say rule is not applicable in this situation. This is because the Government does not again have to prove its case as to the guilty findings and because the court must have some information concerning the offenses in order to properly adjudge a sentence.
In regard to the last sentence, if the plea is established as being improvident and the rehearing has been ordered by a Court of Military Review or the Court of Military Appeals, referral should be through the appropriate Judge Advocate General rather than directly to Court.
Procedure for combined rehearings. The second sentence provides for additional challenges for cause during the sentencing procedure in a com-

Paragraph
Jones, 10 USCMA 532, 533, 28 CMR 98, 99 (1959). Also see United States
v. Russo, supra.
The third sentence of the second paragraph explains that in adjudg- ing a less severe sentence at a rehearing or new trial, the court is not limited to adjudging the same or a lesser form or amount of the same type of punishment originally adjudged. United States v. Smith, 12 USCMA 595,31 CMR 181 (1961) ;United States v. Kelley, 5 USCMA 259, 17 CMR 259 (1954).
The last sentence of the second paragraph is based on NCM 364, Kincaid, 17 CMR 523 (1954).
As to the sentence comprising the third paragraph, it should not be interpreted as prohibiting the breaking down of the maximum punish- ment when a rehearing is combined with a trial on additional offenses. In that instance, the court should be advised of what portion of the overall maximum sentence pertains to the reheard specifications, and that no punishment in excess of this may be considered for these offenses. See Kincaid, suplra. This is really no different than breaking down the overall maximum punishment for the court when more than one offense is in- volved in an original trial. Of course, the court should not be told the reason for the sentence limitations on the reheard offenses.
Sentence rules for other trials. This subparagraph defines “other trials” and makes the sentence rules applicable to rehearings also applica- ble to other trials except as provided in the second sentence. This change was made for fundamental fairness to the accused who should not suffer by being subject to a more severe sentence at the next trial because of mistakes by the Government which were not his fault. It was felt that the Court of Military Appeals has found the lack of such a sentence limitation to be cumbersome and as a result has avoided declarations of jurisdic- tional error to insure that the accused will have the sentence protections of a rehearing at a subsequent trial. This might lead to bad law. See United States v. Law, 10 USCMA 573, 578, 28 CMR 139, 144 (1959) (dissenting opinion) ; United States v. Ferguson, 5 USCMA 68, 17 CMR 68 (1954) ;United States v. Padilla, 1USCMA 603, 5 CMR 31 (1952). It was also noted that in United States v. Roberts, 7 USCMA 322, 22 CMR 112 (1956), despite a holding of jurisdictional error, the Court ordered a rehearing.
AGO 20081A

CHAPTER 16

RECORDS OF TRIAL

Paragraph
82a General courts-martiadResponsibiIity for preparation of the record.
The second paragraph was rewritten to provide that the notes and record- ings from which the record of trial was prepared should be retained for a period that is prescribed by regulations instead of “for at least 30 days after delivery of a copy of the record to the accused or 60 days after the record of trial is forwarded to the convening authority, whichever period expires first.” Administrative matters such as this are handled better by regulations than by an executive order. In rewriting this paragraph, the reference to recording devices was deleted as unnecessary and the para- graph is now addressed only to the retention of the notes and recordings.
Contents of the record of trial. In the third sentence of (I), “hear-ings held out of the presence of the members” was inserted as a matter to be included in the “verbatim transcript.” Subparagraph (1)was further modified to implement the amendment of Article 54 by providing for summarized records of trial in certain designated cases.
. When the accused has been acquitted of all charges and specifications, it is sufficient for his protection if the record reflects that he had been tried for an offense, and foun,d innocent by a court which had jurisdic- tion.

The provision that records of trial in cases terminated with prejudice to the Government prior to findings need only contain sufficient informa- tion to establish jurisdiction over the accused was added as being within the intent of Art. 54. Such a termination of the case has the same effect as an acquittal and for all practical purposes it is an acquittal of all charges and specifications. The similarity between such action and an acquittal is even greater in cases dismissed on a motion for a finding of not guilty.
A summarized record is required for those cases in which the sen- tence adjudged does not include a discharge and is not in excess of that which could otherwise have been adjudged by a special court-martial. In such cases, the accused has been convicted and appellate authorities require a record upon which to review the conviction. The time and effort required to produce a verbatim record is not justified. The Manual for Court-Martial, United States, 1951 required only a summarized record for a special court-martial which did not adjudge a bad-conduct discharge. The summarized record has been found to be completely adequate for these cases, and this paragraph extends the practice to GCMys in which a similar sentence is adjudged.
This paragraph sets forth the minimum requirements for summa-rized records of trial but, in view of the many courses of action available, it is made clear that each Secretary may prescribe additional require- ments for his department.

AGO 200’11A

Pam 27-2
Paragraph

The former sixth sentence of (1)was deleted as being erroneous. It read as follows: “The record will set forth material conclusions arrived at by the members of the court in closed session.” In the second paragraph of (5), “proceedings held outside of the presence of members of a general court-martial,” was deleted because the common practice today is to incorporate them into the record at the point where they occur. See 57g(2) for the procedure for these hear- ings.
This subparagraph was changed to implement the amendment of Article 45.
Delivery to accused a copy of the record of trial of general court- martial. In the first sentence of the first paragraph, “the trial counsel will arrange for the accused to be furnished with a copy of the record” was substituted for “the trial counsel will give the accused a copy of the record” to make it clear that the trial counsel does not have to personally hand the accused a copy.
Forwarding the record of trial to convening authority. In the first sentence, “including a properly executed Court-Martial Data Sheet” was deleted as this type of detail is more appropriately handled by regulations. For the same reason, “the necessary copies of the record” was substituted for “all copies of the record not delivered to the accused.”
Loss of record of trial of a general court-martial. In the second sentence, consideration was given to deleting “substantially” before the words, “accurate record of the case.” But, the use of “substantially” was retained as it correctly reflects the standard applied by the Court of Military Appeals. See the comment on 15b for citations of authority.
Loss of notes or recordings of the proceedings. The former title, “Loss of notes or devices containing original record of proceedings” was changed and the reference to the devices from which the proceedings were recorded was deleted. It is the loss of notes or recordings, not the devices which made them, that creates the problem.
Inferior courts-martial. The material contained in 83b (I), (3), and (4), 83c, and 83d of the 1951 Manual was deleted in favor of leaving the matters formerly covered therein to regulations. The deleted material contained details as to preparation, authentication, and disposition of special court-martial records of trial.
Conforming changes were made to take account of presence of the MJ at BCD SPCM.
Special court-martial records not involving bad-conduct discharge.
Numerical subparagraphing was no longer necessary in view of the dele- tions discussed under 83, above. This subparagraph now contains the material formerly contained in 83b(2). However, it was changed as indi- cated below.
The words “as indicated in appendix 10” were deleted at the end of the first sentence to remove the possible implication that the format prescribed in appendix 10 was not subject to modification.
The third sentence was inserted to allow further summarization in the event of acquittal. See comments opposite 82b.
AGO 20081A

Paragraph
The phrase “unless otherwise provided by regulations of the Secre- tary concerned” was added at the end of the fourth sentence. Cogent reasons may arise for providing for the retention of notes and recordings of these proceedings.
The last sentence was added to make it clear that details as to prepa- ration, authentication, and disposition of records of trial are appropriate matters for regulations.
Summary courts-martial. This subparagraph was formerly 83e. Its redesignation was necessitated by the deletions which are discussed under 83, above.

AGO 20081A

Pam 27-2
CHAPTER 17

INITIAL REVIEW OF AND ACTION ON RECORDS OF TRIAL
Paragraph
84a Who may take initial action. General. In the second sentence, “the term ‘convening authorty’ includes the person who” was substituted for “the term ‘convening authority’ shall be understood to include the officer
who” in recognition that a Secretary can be a convening authority.
Normal convening authority. In the first sentence, “person” was sub- stituted for “officer” for the same reason as 84a.
Oficer exercising general court-martial jurisdiction. In the first sen- tence “person” was substituted for “officer” for the same reason as in 84a. The third sentence was revised by adding the grant of immunity to a witness for the prosecution situation. See United States v. White, 10 USCMA 63, 27 CMR 137 (1958). A similar disqualification results when a prosecution witness testifies at a trial of another pursuant to his own negotiated plea of guilty agreement. See United States v. Gilliland, 10 USCMA 343,27 CMR 417 (1959).
Action when a bad-conduct discharge is adjudged by a special court- martial. In the second sentence, “and has not been authorized to forward such a record directly to the appropriate Judge Advocate General for action” was deleted and “ordinarily” was inserted. The reference to 94a(3) was transposed from the second sentence to the third, and the change in this subparagraph conforms to the change in 94a(3). Added reference to 88b.
Form and content of review. In the first paragraph, all after the third sentence is new, In regard to statements in the fourth sentence of this paragraph, that matters outside the record may be considered rela- tive to disapproval of all or part of the findings, see United States v. Massey, 5 USCMA 514, 18 CMR 138 (1955) ;but not to support finding of guilty, see United States v. DufSy, 3 USCMA 20, 11CMR 20 (1953). In regard to the statement in the fifth sentence of this paragraph that matter outside the record may be considered relative to sentence, see United States v. Lanford, 6 USCMA 371, 20 CMR 87 (1955). In regard to the statement in the sixth sentence of this paragraph as to the opportun- ity to rebut or explain adverse matter, see United States v. Griffin, 8 USCMA 206, 24 CMR 16 (1957); and in regard to the two exceptions, “unless he supplied the information himself or may be charged with knowledge that the information might be used against him,” see United States v. Harris, 9 USCMA 493, 26 CMR 273 (1958) and United States v. Owens, 11USCMA 240, 29 CMR 56 (1960), respectively. The former last sentence of the first paragraph, which stated that the convening authority may direct his staff judge advocate or legaI officer to make a more com- prehensive review, was deleted as unnecessary.
The last sentence of the last paragraph is new, and states that the review should be limited to questions of jurisdiction when proceedings

AGO 20081A
Pam 27-2

Paragraph were terminated without findings and no further action is contemplated. The term “concerned” was deleted as obsolete in this context.
Disposition of review. This subparagraph formerly stated that two signed copies of the review will be attached to the original record, that copies of the review customarily are made available to the trial counsel and MJ, and in a case involving a bad-conduct discharge adjudged by a special court-martial a copy is ordinarily transmitted to the convening authority. As rewritten, it simply states that the original of the review will be attached to the original record of trial, and the number of copies of the review and their distribution will be as prescribed in regulations.
Finding of not guilty or ruling amounting to finding of not guilty as consideyed on review. The former last two sentences of the first para- graph read as follows: “Such a record may also show that administrative action is appropriate. For example, if the court acquitted the accused of all charges and specifications because of his lack of mental responsibility at the time of the offense (120b),the disposition of the accused will be in accordance with pertinent departmental regulations.” They were deleted as an inappropriate reference to an administrative matter.
Correction of record. The ninth and tenth sentences are new. They require service on the accused of a copy of the certificate of correction of the record of a summary court and the attaching of the receipt of this service to the record of trial if regulations require that a copy of the record be furnished to the accused.
Revision proceedings. The first example in the former third sentence, “if a previous conviction was erroneously considered by the court, and it is believed that the consideration of such conviction influenced the court in adjudging the sentence,” was deleted as this type of error could best be cured by a rehearing on the sentence or by the convening authority’s reduction of the sentence.
Finlcbings as to a specification on examination, of a finding of guilty.
The first sentence of (1) is new. It reads as follows: “The convening authority must make a specific and independent determination with re-spect to each finding of guilty.”
Eflects of errors on the findings. This subparagxaph formerly con- sisted of five paragraphs instead of the present two. In the rewrite, certain language was eliminated as surplusage. The former introductory words of the first sentence of the first paragraph, “although the competent evidence of record may be sufficient to establish the guilt of the accused as to a particular offense,” were deleted; and in this sentence, “an error affecting that finding” was substituted for “an error concerning the admission of incompetent evidence prejudicial to the accused or the rejection of compe- tent evidence favorable to the accused, or any matter of procedure affect- ing a finding of guilty of an offense.” The second sentence of the first paragraph is the same as the former second sentence of the first para- graph. The third sentence of the first paragraph was substituted for the former second paragraph and the first sentence of the third paragraph of the first paragraph was substituted for the former second paragraph and the first sentence of the third paragraph of MCM, 1951.
AGO 20081A

Paragraph

Pam 27-2
The substance of the fourth sentence of the first paragraph is the same as was in the former second sentence of the third paragraph. The fifth sentence of the first paragraph is the same in substance as the former third sentence of the third paragraph, but surplus language was eliminated by substituting “rather, the test is whether the competent evidence. . . .” The last sentence of the first paragraph is substantially the same as the fourth paragraph of MCM, 1951. However, the example of a flagrant violation of a fundamental right “when the disloyalty of defense counsel directly aids the prosecution,” was deleted as unnecessary.
The last paragraph is the same as the fifth paragraph of MCM, 1951.
The former third sentence in the first paragraph gave, as an example of material prejudice to the accused, the failure to advise him relative to the statute of limitations. This sentence was deleted as unnecessary.
Powers of the convening authority with respect to the sentence in general. The first sentence of the first paragraph is a new addition which generally defines the power of the convening authority as to disapproving or reducing a legal sentence. This statement was considered necessary to provide additional clarity when read in conjunction with 88b and c.
The fourth sentence of the first paragraph, formerly the third sen-tence was modified and reference to “divisible” sentences was deleted. The word “divisible” was considered to be unnecessarily confusing. In modify- ing this sentence, it has been changed to reflect what was meant by the word “divisible” in the former Manual. See Legal and Legislative Basis, Manual for Courts-Martial, United States, 1951, 125.
In the last sentence of the second paragraph, “mitigated” was changed to “reduced.” The powers of the convening authority on sentence cannot be distinguished separately on individual theories of mitigation and commutation. See the discussion of this in the first paragraph of the discussion of changes in 88c, infra.
The convening azcthority’s determination of what sentence should be approved. The word “severe” was deleted before the word “sentences” in the next to last sentence of the first paragraph because the factors dis- cussed in this sentence should be considered in all cases rather than just in those involving severe sentences.
The third paragraph is a new addition. The first sentence was added to compensate for the deletion of the former provision in the second paragraph of 127b of the 1951 Manual that forfeitures of pay may not exceed two-thirds per month for 6 months without a punitive discharge. The language adopted here is similar to that formerly appearing in the last paragraph of 127b, however the forfeiture limitation was linked to cases where there is no confinement rather than to those with no punitive discharge. The last paragraph of 127b was deleted as it related to a matter which should be considered by the convening authority in taking his action and its content thus was more closely related to the subject matter in this chapter. Logically, the forfeiture limitation should be linked to cases where there is no confinement rather than where there is no punitive discharge. A person who is confined has no great need for money, whereas a person pending punitive discharge, who is not confined, does have. The provision is also consistent with the Congressional intent ex-pressed in Article 57(a) that a person in confinement should not be allowed

AGO 20081A
Pam 27-2

Paragraph to draw full pay. It also expresses what has long been a custom of the service. See CM 361331, Bomblosky, 9 CMR 342 (1953). This policy is generally practice in the service today and the example in the last para- graph of 88e(l) has always inferred that the policy is applicable. A clear pronouncement of the policy was needed in the Manual in order to avoid confusion. Additionally, the provision takes into account the guidance in United States v. Jobe, 10 USCMA 276, 27 CMR 350 (1959), which indi- cates that it might be cruel and unusual punishment to have a person who is not confined under excessive forfeitures.
The second sentence of the new third paragraph is a cross reference which indicates appropriate action when a problem arises as to overlap- ping forfeitures resulting from more than one sentence. See 88d(3) and the discussion of its provisions herein as to how the power of the conven- ing authority has been expanded in the deferral of forfeitures.
Approval of part of a sentence by the convening authority. This subparagraph was almost completely rewritten to reflect the holding in United States v. Russo, 11 USCMA 352, 29 CMR 168 (1960), and subse- quent cases (see, e.g., United States v. Johnson, 12 USCMA 640, 31 CMR 226 (1962) ; United States v. Christensen, 12 USCMA 393, 30 CMR 393 (1961)), that the convening authority may not only reduce a sentence in quality and quantity but also may change the punishment adjudged to one of a different nature, so long as its severity is not increased. Although the word “commute” is used in Christensen, it has not been used in this subparagraph as it was considered best to avoid the use of words having special legal connotation and to avoid the possibility of any appearance of inconsistency with Article 71(a) and (b). No attempt has been made to set forth examples of sentences which may properly be approved by the convening authority. Each case will have to turn on its particular facts and circumstances in accordance with the general rules set forth in this and other paragraphs.
It should be noted that the first sentence of the first paragraph does not refer to the convening authority approving a part of a sentence as was formerly done in the second sentence of this paragraph. In testing the legality of the convening authority’s action, the test is not whether he approves a part of an adjudged sentence which is no more severe than a part adjudged. The test is whether the overall sentence approved by the convening authority is no more severe than that adjudged. See, e.g., United States v. Christensen, supra.
Of course, the second sentence of the present first paragraph does not foreclose a convening authority from taking actions such as changing an improperly adjudged dismissal of a noncommissioned warrant officer to a dishonorable discharge. This type of action is obviously sanctioned by the decisions in United States v. Alley, 8 USCMA 559, 25 CMR 63 (1958) and United States v. Bell, 8 USCMA 193,24 CMR 3 (1958).
Execution of sentence. This subparagraph was substantially revised by expanding and subparagraphing it. Subparagraph (1) has been enti- tled “Authority to order” since this is the subject matter contained therein. This matter is basically the same as that which formerly com- prised all of 88d. Subparagrapl-is (2) and (3) contain matter which is new to 88d, and they are entitled “To confinement” and “To forfeitures of pay or dlowances,” respectively. It is felt essential in the interest of clarity to
AGO C0081A

Paragraph
give these subjects separate treatment as they are exceptions to the gen- eral rule that sentences are effective on the date ordered executed as prescribed In Article 57 (c). Since they are afforded separate treatment in Article 57 (a)and (b,), it was considered lappnopriate to do the ,same in 88d. Significant features of the individual subparagraphs are discussed below.
Execution of sentence to confinement. This subparagraph consists of cross references to 88f, 97c, and 126j. The basis of this addition was that the convening authority should consider the provisions of these subpara- graphs prior to taking his action. It was considered more appropriate to leave the material contained in these subparagraphs in their present loca- tions rather than incorporating it here because these provisions normally operate automatically without affirmative action by the convening author- ity.
Execution of sentence to forfeiture of pay or allowances. This sub- paragraph discusses the effective date of forfeitures. The subject was formerly ‘discussed in detail in 88e(3) (c), and a partial disousion still remains in 126h(5). Because of its close connection kith Article 71, it was considered more appropriate to include the detailed discussion of this matter in this subparagraph rather than in 88e(2) (c). It was felt that the relocation might be helpful in eliminating the problem of forfeitures being prematurely ordered applied or executed in some cases.
A new second paragraph was added to comply with the change to Article 57 (a). This paragraph is designed to eliminate any ambiguity in actions or orders affecting the application of forfeitures where a deferred sentence to confinement is involved. The officer empowered to defer the service of confinement has several options with respect to forfeitures in the event he subsequently rescinds a deferment of confinement. He may continue the deferment of the forfeitures; he may order forfeitures to apply effective the date of the rescission; or he may direct that forfeitures be applied at some future date.
The third paragraph of this subparagraph concerns the specific actions to be taken by the convening authority when he is authorized to order for- feitures applied or executed. It was formerly indicated in 88e(2) (c) that the power of the convening authority to defer was limited to deferral of the application of forfeitures until the sentence is ordered executed at the com- pletion of appellate review. It is indicated in 42 Comp. Gen. 279 (1962) that the power to defer is not this limited. Accordingly, the limitation was re- moved. The present treatment permits the convening authority to defer the execution of forfeitures when authorized (see Article 71) and appro- priate, for example, to obtain full collection of forfeitures when two sentences to partial forfeitures would otherwise overlap. Also, deferral of application is permitted without limitation as to time. For example, a convening authority may decide to defer the application of total forfei- tures for whatever time is necessary to obtain transportation for depend- ents from an oversea command and the time element would probably be something short of the time required to complete appellate review. Of course, each service is free to impose by policy regulations those limita- tions on these powers which are considered necessary.
The sentence comprising the third paragraph indicates that the con- vening authority should make an affirmative statement in his action as to the execution, suspension, application, or deferral of forfeitures. The pur- pose of the sentence is to encourage good administration. It was not in-

AGO 20081A

Pam 27-2
Paragraph tended to conflict with the automatic application of forfeitures provision in the next to last sentence of the first paragraph of this subparagraph. In this regard, although the second paragraph contains rewording, there is no change in substance from the material contained in the second para- graph of 88e(2) (c) of the 1951 Manual. Although there might appear to be some conflict concerning the mandatory language of the Manual (see also 126h(5)) and the permissive language of Article 57(a) as to the application of forfeitures, the Court of Military Appeals has upheld the mandatory language of the Manual which serves to implement automatic applioation. United States v. Lock, 15 USCMA 574, 577, 36 CMR 72, 715
(1965). Suspension of the execution of the sentence in general. The words “for a stated period of time” were added to the first sentence of the second paragraph to indicate that a suspension cannot be indefinite.
The word “Ordinarily” was deleted from the beginning of the second sentence of the second paragraph because there are no valid exceptions to the stated purpose of suspending sentences. The sentence was further reworded to avoid the inference that the purpose of a suspended sentence is to permit an accused to show by affirmative acts of good conduct that a suspension should be remitted. Actually, all that is required is that he not get in trouble which would justify vacation. See, e.g., United States v. Cecil, 10 USCMA 371, 27 CMR 445 (1959); United States v. May, 10 USCMA 258,27 CMR 432 (1959).
The third and fourth sentences of the second paragraph are new additions which contain information transposed from 97a. It was felt more appropriate to include this information here as it should be consid- ered by the convening authority when he takes suspension action.
The former next to last paragraph has been deleted because it fur- nished little or no guidance and could be considered as a limitation on the powers of the convening authority under the Code and as command influ- ence.
Types of suspensions in general. The first sentence was revised so as to convey more definite instructions for specifying the period of time for which a suspension is to last. The terms “definite” and “indefinite” for-merly used to describe this period of time were subject to several inter- pretations. As rewritten, the sentence makes it clear that the period of suspension may not be so indefinite as to depend on a contingency that may never occur.
The second sentence was modified to indicate that the convening authority should provide for remission of all types of suspended sentences rather than just when the suspension is for a specific term. See United States v. Cecil, supra; United States v.May, supra.
The next to last sentence as rewritten incorporates the idea formerly expressed in the next to last sentence as well as the former provisions in the last paragraph of 88e(2) (b). This material was moved from 88e(2) (b) as it expresses general rules which are applicable to suspensions other than the suspension of punitive discharges. It should be noted that the former provision in this sentence as to suspending for an additional period has been removed as such an action would be an illegal increase in the punish- ment.
Suspending dishonorable or bad-conduct discharge when sentence also includes confinement. The former third through sixth sentences were
AGO 20081.4

Paragraph deleted. These sentences sanctioned the practice of administrative suspen- sion of punitive discharges until the completion of appellate review at which time the discharges were executed without a hearing as required by Article 72(a) and (b). This practice was forbidden in the Cecil and May cases, supra.
The former last sentence was modified and incorporated in the next to last sentence of 88e(2) (a). See the last paragraph of the discussion of changes in 88e (2) (a), above, for the reason for this change.
Suspending the execution of forfeiture. This subparagraph now con- sists of only a cross reference to 88d(3) where the matters formerly appearing herein now appear in modified form. See the discussion of changes in 88d (3), supra, for the details.
Termination of suspensions by remission. This subparagraph is a new addition. The first and last sentences contain information formerly contained in 97a. These are matters which should be considered by the convening authority in taking his action and, therefore, properly belong in this chapter rather than in Chapter XIX which deals primarily with subsequent actions at higher levels. The second sentence, providing that the unauthorized absence of an accused interrupts the running of a period of suspension, is an entirely new addition. See JAGJ, CM 347759, 3 Oct. 1952, 2 Dig. Ops. 841(1952 -1953). In regard to the third sentence, it condenses the material contained in the last two sentences of the third paragraph of 97a of the 1951 Manual into one sentence. This was accom- plished by dropping the word “honorable” before “discharge” and adding “which terminates status as a person subject to the code.” The added words are necessary because it is common procedure to execute punitive discharges after the completion of appellate review and before the con- finement portion of sentences has been completely served. In some in- stances this occurs in cases where a substantial portion of a sentence to confinement has been suspended. Without the recommended addition, such a suspension could not be vacated for misconduct occurring after the punitive discharge is executed and during the time that the remaining unsuspended confinement is being served.
This new paragraph implements amended Art. 57(d). It explains what deferment of the service of a sentence to confinement is and distin- guishes it from clemency. Inasmuch as the authority to defer is a discre- tionary matter for the officer empowered to do so, no attempt was made to establish guidelines for the exercise of this discretion, other than the cau- tionary recommendations against granting deferments when the accused would be a danger to the community, may repeat the offense, or may flee to avoid service of sentence. The nature of this authority is emphasized by characterizing it as sole and plenary. This was done in order to assure the greatest possible freedom of action on the part of the officer possessing this authority. See Senate Report, P 13.
The accused may apply for deferment to the officer exercising general court-martial jurisdiction only where the accused is no longer under the jurisdiction of the convening authority. In some instances, such as when the accused is sent to a retraining organization, the officer exercising GCM jurisdiction over the accused may not be the supervisory authority over the case within the’meaning of paragraph 94. In order to eliminate any question as to which officer should be requested to grant deferment in an appropriate case, it is clearly stated that the officer exercising jurisdic-

AGO 20081~
Pam 27-2

Paragraph tion over the command to which the accused is assigned is the proper person, regardless of whether he is the supervisory authority of the case.
Although the statute is clear that the power to defer lies in the convening authority or in appropriate case, the officer exercising general court-martial jurisdiction, the fact that a court-martial was not empow- ered to do so, was stated in 88f in order to keep the question from being raised.
For the sake of orderliness and the maintenance of a well docu- mented record of trial, applications for deferment of confinement and grants and denials of the applications are to be in writing. This corre- spondence will be made a part of the record of trial.
Although it may be necessary in certain instances, particularly where there is a considerable distance between the place of trial and the location of the convening authority, to obtain a grant of deferment telephonically, the requirements of this provision are adequately met if the request and grant are reduced to writing and later incorporated into the record of trial.
The fact of a deferment and the dates between which it is in effect will be set forth in the convening authority’s action in those cases where the granting of the request occurs prior to or concurrently with the taking of the action. In all other cases this information will be promul- gated in supplementary orders which will be included in the record of trial. All deferments together with their inclusive dates under this system will ultimately be reflected in either court-martial orders or supplemen- tary orders, thus providing an authoritative and definitive basis for com- puting the length of time to be served, and the date upon which the service is to begin, as well as ready, concise account of the accused’s status with respect to confinement.
Restriction or any other form of deprivation of liberty is prohibited from being used as a substitute for deferred confinement. Providing or permitting otherwise would serve to increase the punishment which an accused would undergo and might well discourage the exercise of this right completely. Allowance is made for imposing restrictions upon the accused’s movements for independent reasons which would be justified under other provisions of the manual.
Once the sentence is ordered into execution, the deferment is ter- minated (Art. 57(d)). The confinement may be approved and suspended but it may not be further deferred. Deferment of confinement and suspen- sion of the same period of confinement cannot exist concurrently as they involve two basically different concepts.
This paragraph provides for the rescission of deferment of the serv- ice of confinement.
The convening authority, and when the accused is no longer under his jurisdiction, the officer exercising general court-martial jurisdiction over the command to which the accused is then assigned, are empowered to rescind a deferment of confinement at any time. The authority to do so is characterized as being sole and plenary in order to give these officers the widest possible discretion in exercising this prerogative.
Rescissions of deferments, together with the dates on which they occur, are required to be set forth in the initial action in the case or in
AGO 20081A

Pam 27-2

Paragraph supplementary orders depending on when they take place. Ultimately all rescissions and the dates on which they are effected will be reflected in either the court-martial order or supplementary orders which will be included in the record of trial. These requirements insure orderliness in procedure and a complete record of trial, as well as a convenient, authori- tative, and definitive document from which to compute the amount of time which remains to be served.
Action concerning execution and suspension of the sentence. The second paragraph which formerly consisted of one sentence was deleted. That sentence dealt with recommendations of the convening authority when he was not empowered to commute a sentence. This provision was no longer proper in. view of the changes in 88c giving the convening authority unrestricted power to commute. See the first paragraph of the discussion concerning reasons for changes in 88c, supra.
Action concerning custody or confinement while awaiting result of appellate review. The title of this subparagraph was changed. The former title was “Temporary custody.” Additionally, the words “or confinement” were added to the latter portion of the first sentence. These changes were made to avoid a possible interpretation that confinement pending appel- late review is always classified as temporary custody.
The former next to last sentence was deleted. It announced the policy that an accused in confinement should, when practicable, be retained in the command of the officer exercising general court-martial jurisdiction over him until final disposition of the case upon appellate review. This was not consistent with the practice in all of the services and such a policy is more appropriate for inclusion in regulations if desired.
This is a new paragraph which provides for action on deferment of service of the sentence to confinement.
Action on rehearing or new or other trial. The title and content of this subparagraph was expanded by adding new or other trials to its scope and it was re-numbered. The expansion was accomplished in order to give the convening authority added guidance when required to take action in these situations. Accordingly, this subparagraph was subdivided into two subparagraphs and the substantive changes discussed below were made.
Action on rehearing or other trial. This subparagraph as modified includes all of the material formerly in 89c(7). The first paragraph of the subparagraph is a new addition. The first sentence of the first paragraph provides that the convening authority is subject to the same sentence limitations as those prescribed for the court at a rehearing. The last sentence of the first paragraph provides for the action to be taken in certain cases when a portion of the original sentence was suspended. See United States v. Smith, 11 USCMA 149,28 CMR 373 (1960).
A provision was added to the second sentence of the present second paragraph to require crediting of any executed portion of the original sentence in computing the term or amount of punishment to be served or executed pursuant to a new sentence only when a particular type of executed punishment is also included in the new sentence. This change was necessary to remove the inference that there will be a crediting in all situations where la portion of an original sentence has been executed. For

AGO 20081A
Pam 27-2

Paragraph treatment of the subject. It should be noted that, as revised, subparagraph
(1)makes no mention of forwarding a case to the Judge Advocate Gen- eral under 94a(3). The reason for this is that this portion of 9443) was not used in the services and regulations provide for the processing of these cases when the general court-martial convening authority has no judge advocate or legal specialist. Accordingly, 9443) was revised to leave this matter to regulations.
The clause concerning regulations of the Secretary of a Department
was included in the next to last sentence of subparagraph (2) to provide
additional flexibility as discussed as to 90a, above.
Disposition of summary court-martial records and related matters. The sentence comprising the first paragraph was added to relieve the mandatory aspects of the remainder of the paragraph.

AGO 20081A

Pam 27-2
CHAPTER 18
ACTION

Paragraph
92 Ordering rehearing or other trial. The title of this paragraph was changed as the former title, “Ordering Rehearing,” was not as descriptive of its contents. This paragraph was divided into subparagraphs a and b to facilitate reference.
Rehearing. In the second paragraph, the reference to who may order a rehearing was revised to include an officer having supervisory authority and an officer authorized to convene general courts-martial. See United States v. Frisbee, 2 USCMA 293,8 CMR 93 (1953).
The fourth and fifth paragraphs are new. They were inserted to conform to the changes made in 81, to clarify the types of rehearings which may be ordered, and to prescribe the action which may be taken in each type of rehearing. See United States v. Field, 5 USCMA 379, 18 CMR 3 (1955). The seventh paragraph conforms to new 62f (10) in allow- ing the MJ to sit at the rehearing of a case in which he original.1~ sat it further provided that the accused may request rehearing by MJ alone in all cases regardless of whether such a request was filed at the first hear- ing. An approved request at the initial hearing does note rule out a hearing with members the second go around.
In the last sentence of the seventh paragraph (formerly the fifth paragraph of 92), “the sentence shall be limited as provided in 81d(l)” was substituted for “no sentence in excess of or more severe than the original sentence shall be imposed unless the sentence is based upon a finding of guilty of an offense not considered upon the merits in the original proceedings or unless the sentence prescribed for the offense is mandatory (Art. 63 (b) ).” The deleted material was incomplete and incor- rect. The sentence at the prior trial is not controlling when there has been a valid reduction therein before the rehearing. See 81d(l) and the discus- sion of the changes in that subparagraph of chapter XV.
he new tenth paragraph is based upon United States u. Martinez, 11 USCMA 224, 29 CMR 40 (1960). Although Martinez involved a situation where the original trial was before a general court-martial and the re- hearing on sentence was before a special court-martial, the objection to a different type of courts-martial would be equally meritorious in a similar situation involving a special and summary court-martial. This paragraph would allow rehearing of the sentence adjudged by a special court-martial with an MJ by a special court-martial without an MJ.
Other trial. This subparagraph contains material formerly in the ninth paragraph of 92. However, it was revised to make the procedure sentence limitations prescribed for rehearings applicable to other trials. See the comment on 81d(2) contained in the discussion of changes in chapter XV. Material similar to that provided in the seventh paragraph of 92a has also been inserted here.

AGO 20081A
AGO 20081A
Pam 27-2
CHAPTER 19
ACTION AFTER PROMULGATION

Paragraph
94a(l) Review of sentences and filing of records of special and summary courts-martial in general. A new sentence was added to provide that, except as provided in 94, the manner of exercising supervisory powers
shall be as prescribed in regulations of the Secretary concerned. This permits flexibility among the services in the exercise of supervisory pow- ers over special and summary courts-martial.
Review of records of trial pursuant to Article 65 (c). In the last portion of the first paragraph, “also reduce (see 88a), change the nature of (see 88a)” was substituted for “mitigate” to conform with the changes made in 88a and c regarding the power of commutation.
In the last paragraph, after “when, upon review pursuant to this paragraph,” the words, “and any further review and procedures which may be provided in regulations of the Secretary concerned,” were in-serted. This permits the Secretary concerned to control the time of final- ity. Article 76 prescribes finality only with respect to review provided or required “by this chapter,” i.e., the Code. The Code contemplates that the review of summary courts-martial and speciaI courts-martial not includ- ing a bad-conduct discharge will be as prescribed by regulations, subject only to a requirement that the review be conducted by a judge advocate law specialist or lawyer of the Coast Guard or Department of Transporta- tion. Therefore, the regulations may provide for further review of these cases at departmental level.
Review of special court-martial records pursuant to Article 65(b). The new second sentence states that regulations may provide for forward- ing the record to any officer exercising general court-martial jurisdiction, who shall be considered “the officer exercising general court-martial juris- diction” within the meaning of Article 65(b). The insertion of this sen- tence made it possible to delete the former third and fourth sentences.
Reports in certain cases. In the first paragraph, “which involves suspension from rank and command, restriction, or any other material change in the status of the officer” was changed to “which involves any material change in the status of the officer” as suspension from rank and command is no longer an authorized punishment and the particular desig- nation of “restriction” as a “material change” is unnecessary.
Remission and suspension. In the first paragraph, “reduce, change the nature of, or suspend” was substituted for “mitigate.” See first para- graph of the comment on 94a(2).
At the end of the first sentence of the second paragraph, “except as provided in 105b” was added. The President, in the last paragraph of 105b, has authorized the Secretary concerned to act under Article 74(a) after the President commutes a death sentence. The last sentence of this paragraph is new. It provides that “suspension actions

AGO 20081A
Pam 27-2
Paragraph taken under the authority of this paragraph (7) and Article 74(a) are subject to the rules set forth in 88e.” This sentence was necessary because all rules concerning suspensions were consolidated in 88e. Accordingly, the third paragraph which dealt with suspensions was deleted and much of the material moved to 88e.
Vacation of suspension. The second paragraph was rewritten to elim- inate excess verbiage. Also, in the second sentence, the words “or includes, unsuspended” were added to conform with Articles 71(c) and (d). For example, if a portion of a sentence less than dishonorable or bad-conduct discharge or confinement for one year is vacated, it may be ordered into execution even when the sentence contains dishonorable or bad-conduct discharge or confinement for one year or more so long as any of those ingredients of the sentence continue to be suspended.
The fourth paragraph is a new addition which was added to preclude confusion that has existed in the past concerning the rules stated therein.
Interruptions of execution of a sentence. In the first paragraph, “sus- pension from rank, command, or duty” was deleted as these are no longer authorized punishments.
The exception contained in the second indented paragraph is a new addition which is based on United States v. Bryant, 12 USCMA 133, 30 CMR 133 (1961).
The fourth indented paragraph provides that deferment interrupts the running of the sentence as does suspension.
New subparagraph reflects change to Article 69 which expands the power of the TJAG’s to vacate or modify sentences which have been finally reviewed.
AGO 20081A
CHAPTER 20

APPELLA’IX REVIEW-EXECUTION OF SENTENCES
Paragraph 100a A new paragraph has been inserted at the beginning of lOOa to make it conform to the new requirements set forth in Art. 66. It requires each TJAG to establish a Court of Military Review and refers to the provisions of Art. 66 for information pertaining to the composition of the courts, qualifications of the judges, and certain restrictions upon the official rela- tionship of members of the court to other members.
The fourth sentence of the first paragraph is new material which provides that the Court of Military Review generally has the same power to modify a sentence as does the convening authority except for suspen- sion. United States v. Prow, 13 USCMA 63, 32 CMR 63 (1962); United States v. Russo, 11USCMA 352, 29 CMR 168 (1960); United States v. Estill, 9 USCMA 458, 26 CMR 238 (1958). The fifth sentence is also new. It provides that the Court of Military Review may reduce the period of a suspension prescribed by a convening authority. United States v. Estill, supra.
The sixth sentence is new and it states that the Court of Military Review does not have the authority to defer the service of a sentence to confinement.
Action by the Court of Military Review when sentence is set aside. The first sentence of subparagraph (1)was modified so as to include the authority of the Court of Military Review to reassess sentences in those cases in which all guilty findings are not set aside. The second sentence was modified by the addition of the word “all.” The former subparagraph simply quoted Article 66(d). The changes were made because a literal reading of Article 66(d) by itself tends to indicate that a court is author- ized only to take the actions described therein. But, the Court of Military Appeals has indicated that Article 66(d) must be read alone with Article 59(a). The modifications in these two sentences are based upon the deci- sions in United States v. Miller, 10 USCMA 296, 299, 27 CMR 370, 373 (1959) and United States v. Field, 5 USCMA 379, 18 CMR 3 (1955). This subparagraph, as well as the third paragraph of 101 where similar changes are also made, is not intended to express limitations on the authority of the Court of Military Review or on the Court of Military Appeals in a general sense. They are simply intended to cover their actions in the most common situations. It was felt unnecessary to cover the more unusual actions of these appellate bodies which are clearly au- thorized under case law, for example, returning a case for a new staff judge advocte review (United States v. Papciak, 7 USCMA 412, 22 CMR 202 (1956)) ; returning a case for a special hearing, such as upon a speedy trial issue (United States v. Schalck, 14 USCMA 371, 34 CMR 151 (1964)) ;setting aside only’ some guilty findings with silence as to sent- ence in order to permit the convening authority to decide whether to reassess the sentence or order an appropriate rehearing (see United

AGO 20081A
Pam 27-2

Paragraph States v. Best, 4 USCMA 581, 16 CMR 155 (1954)) ; and dismissal of charges for other than a failure of the evidence, such as when the accused
has already suffered sufficient harassment without further rehearing (United States v. Conrad, 15 USCMA 439, 35 CMR 411 (1965) ; United States v. Lyon, 15 USCMA 307,35 CMR 279 (1965) ).
Subparagraph (3) was modified throughout by replacing “the con-vening authority” with “an appropriate convening authority.” These changes were made to dispel any possible inference that the original convening authority was intended land to conform with the tactual prac-tice. See 84 and Article 60.
Action on sentences not requiring Presidential approval when sent- ence is affirmed in whole or in part. The next to last sentence of the first paragraph of subparagraph (a) has been modified to indicate that the Clerk of the Court of Military Appeals will be provided with a copy of the receipt for or certificate of service of the Court of Military Review deci- sion on an accused only when required by the Court. Current experience indicates that the Court of Military Appeals is interested in these docu- ments only on those cases on which it takes action. Should the Court change its policy, the sentence as modified would accommodate a change of procedure.
The second sentence of the second paragraph of subparagraph (a) is a new addition. It prescribes that the placing of a petition for review in the proper channels confers jurisdiction on the Court of Military Appeals. United States v. Jackson, 2 USCMA 179,7 CMR 55 (1953).
Action on sentences requiring Presidential approval when sentence is affirmed in whole or in part. The words “with his recommendations” were deleted between the words “review” and “directly” in the first sentence. It is considered inappropriate for the Judge Advocate General to make rec- ommendations to the Court of Military Appeals at this stage of the re- view. In this regard, Rules 26 and 42, USCMA Rules of Practice and Procedure, permit both the defense and the Government to file briefs in Article 67(b) (1) cases, and the Government is entitled to file a brief whether or not one is filed by the defense. Also see United States v. Martinez, 11USCMA 224, 227, 29 CMR 40, 43 (1960) and United States
v. Sparks, 5 USCMA 453, 458-459, 18 CMR 77, 82-83 (1955) for discus- sions of the role of the Judge Advocate General in the appellate review of cases.
Review by the Court of Military Appeals. The former second para- graph which quoted Article 67(c) was deleted as it was repetitious with material contained in 100c(l) (a).
Changes similar to those made in 100b(l) were made in the present third paragraph for the same reasons discussed above as to 100b (1).
Review in the Ofice of the Judge Advocate General. The one sentence formerly contained in the second paragraph was replaced by three sent- ences. The content of the paragraph was changed by indicating in the first sentence that the Judge Advocate General shall also advise the appellate defense counsel of reference to a Court of Military Review in those cases when Government counsel are appointed (Art. 70(c) (2) ). This change was made in the interest of completeness. The last sentence as modified indicates that the accused shall be advised of his right to representation
AGO 20081A
Pam 27-2

Paragraph before the court if he has not been previously advised of this right and made a selection in this regard. The latter change was made to afford more clarity and to conform with paragraph 48j(3) which provides for conditional requests for appellate counsel in Article 69 cases.
This paragraph conforms with amended Art. 68 authorizing the Sec-
retary concerned, instead of the President, to establish branch offices with
any command.
Commutation. A cross reference to 8812 was added at the end of this paragraph to indicate that convening and reviewing authorities may also commute sentences. See the cases titled in the above discussion as to 100a.
Remission and suspension. A second paragraph was added which incorporates the content of Exec. Order No. 10498, 18 Fed. Reg. 7003 (1953).
The additional exception added in the second sentence is to recognize the new expanded authority of the JAG under Art. 69. See llOA.

AGO 20081A

Pam 27-2
CHAPTER 21

NEW TRIAL AND RELATED MATTERS
Paragraph
109,110 The petition for new trial. Conduct of new trial and subsequent action. The former 110, “World War I1 Offenses,” was deleted. The reason for the deletion is that, at this date, it is extremely unlikely that there will be any further case to which it will be applicable. However, in the event that there should be, there is a savings clause in the Executive Order implementing this Manual which preserves the provisions of the former
110. This was necessary because 50 U.S.C. 5 740 (1964) required the provision of rules by the President. The material formerly contained in 109 was subdivided and is now contained in 109 and 110. Accordingly, 110
was given a new title. The former title of 109 which was “Offenses Committed after 30 May 1951” was also changed to conform with the revision. Changes made in the material formerly contained in 109 are discussed below in connection with the particular subparagraph in which they were made.
The first paragraph was changed to conform to amended Art. 73 deleting the requirement that court-martial sentence extend to a punitive discharge, dismissal or confinement for one year or more in order for the accused to petition for a new trial and extending the time for petitioning from one year to two years after approval.
Action, upon petition. The first sentence of the first paragraph was modified to remove the incorrect indication that the Judge Advocates General of each armed force provide separate rules for their Court of Military Review. See Article 66(f).
The former second sentence of the second paragraph was.deleted. It read as follows: “Any hearing held by the Judge Advocate General or by a board of review will be conducted under rules prescribed by the Judge Advocate General.” It was deleted so as to eliminate the implied manda- tory requirement that each Judge Advocate General must prescribe rules of procedure for hearings held by them, and because the situation as to hearings before a Court of Military Review is adequately covered in the first sentence of the first paragraph.
The addition in the third paragraph of “take action under that article when authorized or” was made in the interest of completeness and cor- rectness as the Judge Advocate General might take action under Article 74(a), but he can only recommend to the Secretary concerned that action be taken under Article 74 (b) .
The last sentence of the third paragraph is new. The grounds for relief under the new authority in Article 69 are broader than those for which a new trial may be granted, and granting of relief is not dependent on an application by accused. Therefore, if an accused petitions for a new trial, but a vacation or modification of the findings or sentence is more appropriate, such can be accomplished. In the reverse situation when the

AGO 20081A

Pam 27-2
Paragraph request is under Article 69, it may be permissible if the grounds are those authorized under Article 73, other requirements are met, and the interests of justice would be best served, to grant a new trial rather than to vacate the findings and sentence. See llOA.
Conduct of new trial. This was formerly 109g(2). The second sent- ence provides that the same military judge may preside at a new trial. See notes opposite 62f(10) and 92a. The last sentence was modified to con- form with language previously adopted in the first sentence of the second paragraph of 81d(l). As to the significance of “legal sentence,” “ulti-mately reduced,” and “convening or other proper authority,” see the third paragraph of the discussion of changes in 81d(l) of chapter XV, supra.
Action by persons charged with execution of sentence adjudged at a new trial. This was formerly 1091. The words “included within the new sentence” were added to the first sentence. With this modification the sentence now requires the crediting of any executed portion of the origi- , nal sentence in computing the term or amount of punishment to be exe- cuted pursuant to a new sentence only when a particular type of executed punishment is also included in the new sentence. This change was neces- sary to remove the inference that there will be a crediting in all situations where a portion of an original sentence has been executed. For example, it is now clear that crediting is not required if an accused served a term of confinement on an original sentence, and the sentence at a new trial only includes a punitive discharge. This change is consistent with the same change in the second sentence of the second paragraph of 89c(7)(a).
Powers of The Judge Advocate General after Final Review. This is a new paragraph to implement the added authority of TJAG under Art. 69. The Senate Committee report on this provision stated that “It has been the experience of all the services . . . particularly with respect to summary court-martial and those SPCM and GCM cases not reviewable by a board of review, that some provision should be made for removing the fact of ,aonvidion, well as granting o~ther relief in appxoc priate cases. Since the decision to remove the fact of conviction is a judicial determination based on the traditional legal grounds . . .” the TJAG was empowered to give maximum flexibility. Each Judge Advocate General is required to establish rules to assure consideration of applica- tions for relief under this paragraph. It is emphasized that an application under this paragraph is not a part of the appellate review as the author- ity to the JAG under this paragraph can be exercised only in those cases which have been finally reviewed. Thus, if a request under this paragraph is under consideration by JAG, this fact does not in any way affect the finality of the conviction or its admissibility as a previous conviction. See 75b(2).It should be recognized, however, that if the findings or sentence are in fact vacated or modified, such action may affect, in varying degrees, its admissibility as a previous conviction at future trials of the accused. See also comments opposite 109f.
Right of dismissed officer to trial by court-martial. The entire para- graph was replaced by two sentences which indicate that the President has authority to dismiss a commissioned officer in time of war and that the details regarding the right of an officer so dismissed to trial by court-martial are found in Article 4. The former material simply repeated information found in Article 4 which was considered unnecessary.
AGO 20081A
Pam 27-2
CHAPTER 22
OATHS

Paragraph General comment. The words “or affirmation” were deleted throughout this chapter where “oath or affirmation” was formerly used. This was done because “oath” is defined as including affirmation in 112a and in 1
U.S.C. 5 1 (1964). This is also consistent with changes in the UCMJ as codified.
There was no basic change in the persons, required to be sworn. There being no expressed legislative intent to include individual defense counsel within the purview of Art. 42 (a), and based on interpretations of the 1950 Act, a specific manual provision was inserted to require individ- ual counsel to be sworn.
This paragraph replaces the former 112c and spells out the firm requirement under Art. 42 (a) for specific Secretarial regulations covering the enumerated areas as to oaths. Permissive language was inserted to allow such Secretarial regulations to prescribe similar provisions for oaths to be taken by individual counsel. Thus, if deemed desirable, these regulations could provide a procedure whereby individual counsel could take a prescribed oath which would be effective for more than one partic- cular case.
Specific provision is made pursuant to Art. 42(a) for the administra- tion of .a one-time oath to certified legal personnel. While pointing out that Art. 42(a) no longer requires oaths to be administered in the presence of the accused, the door is left open for such a procedure should any service determine that it is desirable to continue the practice.
Procedure for administering oaths. The words “As long as the pre- scribed oath is duly administered” were deleted from the beginning of the second sentence of the first paragraph to avoid the suggestion of a manda- tory form for any oath. The remainder of the sentence was modified to indicate that some persons swear to perform their duties properly rather than to truthfully testify. See 5 Wharton, Criminal Law and Procedure $2003 (12th ed. 1957).
In the third sentence of the first paragraph, the words “to military personnel” were deleted after the first “oath” as we use the same form administering oaths for civilians.
In the last sentence of the first paragraph, the words “and believers in other than the Christian religion” were deleted after “obligatory” because some religions other than the Christian, such as the Jewish, believe in God.
The last sentence of the second paragraph uses restrictive language with respect to trial counsel testifying as a witness with intent to discour- age this practice. Testimony by counsel has been repeatedly condemned by
AGO 20081A

Pam 27-2
Paragraph the Court of Military Appeals. See United States v. Stone, 13 USCMA 52, 56,32 CMR 52,56 (1962), and the cases cited therein.
Reference to the enlistment oath in app. 3b was deleted as not being relevant to the types of oaths being discussed in chapter XXII.
Form of Oaths. Although the forms of oaths for court-martial personnel (114a through e) are left by Art. 42(a) to regulations of the Secretary concerned-including who shall administer such oaths-it was deemed desirable to provide sample forms for oaths to such personnel in the Manual which would be available for use in the absence of appropriate secretarial regulations.
There was no change in the prescribed forms of oaths for other specialized situations (114f through k) as these oaths were unaffected by the change in Art. 42 (a). The oaths in paragraphs a., b and c were modified to conform to the changed Article.
This paragraph was reorganized from the MCM, 1951 by subpara- graphing it.
Subparagraphs a, b, and d no longer make any reference as to when these oaths are given.
The oaths for the MJ and court members in subparagraphs a and b were each modified by deleting that portion of those oaths which indicated that in the event of doubt not explained by the laws and regulations they were to apply their understanding and the custom of war in like cases and that part which indicated that the findings and sentence will not be divulged until duly announced by the court. The deleted provisions were considered unnecessary and misleading. The purpose of a juror’s oath is to impress him with the importance of his duty and the only essentials of the oath are that he swears to well and truly try the case and render a true verdict according to the law and evidence. 5 Wharton, Criminal Law and Procedure 5 2003 (12th ed. 1957). Of course, the members do divulge their findings to the MJ prior to announcing them when he assists the court in putting them in proper form. Additionally, it is not prejudicial error for the MJ to examine the sentence worksheet prior to announce- ment of the sentence. See United States v. Linder, 6 USCMA 669, 20 CMR 385 (1956). In this event, he must allow counsel to examine the worksheet prior to giving the court any instructions regarding it or his instructions are considered as a private communication. United States v. Linder, supra.
Also in subparagraph b, “before a court of justice” was deleted after “required to do so” in the latter portion of the court members’ oath. This provision was considered too restrictive since such a disclosure may be required other than before a court, for example, at a pretrial investiga- tion involving misconduct of a court member in connection with a trial. Although it was not changed, it was recognized that the court members’ oath might not be literally correct in all situations in so far as it prohibits the disclosure of the vote or opinion of a particular member except as provide therein. Probably there is no objection to a court member dis- closing his own vote or opinion at any time. See Harnsberger, Amend Canon 23 or Revise Opinion 109,51 A.B.A.J. 157 (1965).
The oath of counsel contained in subparagraph c was modified by deletion of the phrase “and will not divulge the findings and sentence to
AGO 20081A
Pam 27-2

Paragraph any but the proper authority until they shall be duly disclosed.” This phrase was considered unnecessary since it will be only in a very rare situation that counsel will know the findings and sentence until they are announced. Additionally, this matter can better be disposed of by regula- tions pertaining to the conduct of counsel.
The interpreter’s oath in subparagraph e was changed to require true interpretation rather than faithful performance of duties because an in- terpreter is a witness. See United States v. Rayas, 6 USCMA 479, 20 CMR 195 (1955).
The introduction to the oath for witnesses in subparagraph f was

modified so as to indicate that a witness need be sworn only before he
testifies for the first time in a case.
A reference to 62b was added in subparagraph g to indicate that an oath is given to a challenged member prior to his being examined only when the oath is desired by the questioning party.
AGO 20081A

Pam 27-2
CHAPTER 23
INCIDENTAL MATTERS

Paragraph
115a Attendance of witnesses in gdneral. The second sentence of the second paragraph was modified to indicate that, as an exception, a witness may be subpoenaed for a pretrial examination for the taking of a deposi- tion (Art. 47(a) (1) ).
The former third sentence of the fourth paragraph was deleted be- cause the cross reference to Article 49(d) was not complete because that article does not cover all conditions that are required for the admissibility of a deposition. Depositions are treated in detail in 117. It was decided to delete the cross reference entirely rather than correct it because it is considered undesirable to emphasize the use of depositions in view of the development of the law since 1951. Additionally, it is the exception rather than the rule to use depositions in trials today. Therefore, the Manual should not infer that their use is normal.
Two sentences were added at the end of the fourth paragraph based on United States v. Sweeney, 14 USCMA 599, 34 CMR 379 (1964) and United States v. Thornton, 8 USCMA 446,24 CMR 256 (1957).
Use and examination of documentary and other evidence in control of military authorities. The former title, “Production of documents in con-trol of military authorities,” was changed. The change in title was made because the new title is more appropriate in view of several changes that were made in the material contained herein.
The requirements of this subparagraph have been broadened by add- ing a provision for the use of documentary or other evidence1 in the control of military authorities. The reason for this is that it is appropri- ate, in some circumstances and upon reasonable request, to allow the defense the use of various items of documentary or other evidence which were not provided to him as papers accompanying the charges under 44h. This subparagraph has been broadened in order to make it clear that the defense is entitled to the equal opportunity to prepare his case which is implicit in Article 46. See United States v. Enloe, 15 USCMA 256, 35 CMR 228 (1965) for a general discussion of the concept of “equal oppor- tunity.” The question of how far the government must go in providing or making these materials available is still an open question. The test as announced by the Court of Military Appeals is relevance and reasonable- ness of the request which is determined upon the facts and .circumstances of each case. United States v. Franchia, 13 USCMA 315, 32 CMR 315 (1962). For this reason it is difficult to state a general rule in this subparagraph which will be applicable to all situations. It is contemplated that “relevancy and reasonableness” shall continue to be the test even though this subparagraph has broadened the former rule of discovery in order to provide the defense with equal opportunity to prepare. It is not intended that these changes shall open the door for unreasonable requests
AGO 20081A
Pam 27-2

Paragraph
deposition in order to set out the rules which apply only to each type. Substantive changes in this paragraph are discussed below. However, there is generally no discussion of information that has always been in this paragraph and which was simply moved to a new location in the
interest of clarity.
Definitions regarding depositions. This subparagraph now consists solely of information that was contained in the first paragraph.
General rules and procedures applicable to depositions. As rewritten this subparagraph consists of eleven subparagraphs which provide gen- eral rules and procedures applicable to depositions.
Rights of the accused regarding depositions. The rule contained in the first sentence is taken from the decisions in United States v. Donati, 14 USCMA 235, 34 CMR 15 (1963) and United States v. Drain, 4 USCMA 646,16 CMR 220 (1954).
The rule announced in the second sentence is taken from United States v. Jacoby, 11USCMA 428, 29 CMR 244 (1960) and United States
v. Miller, 7 USCMA 23,21 CMR 149 (1956).
Action on a request to take a deposition. The authority given the MJ and president of a special court-martial without an MJ by the last sent- ence is based on the decision in United States v. Murph, 13 USCMA 629, 33 CMR 161 (1963). In drafting this subparagraph there was no intent to require mandatory approval of the taking of all depositions by an appro- priate authority. It is simply intended to prescribe a procedure that will normally be followed. See United States v. Ciarletta, 7 USCMA 606, 611, 23 CMR 70, 75 (1957), which held that this approval was not mandatory, although the 1951 Manual inferred that it would be done in the first paragraph, 117b, and the first and second paragraphs of 117g.
Taking the deposition. The last two sentences confer new authority on the officer taking a deposition for the proper maintenance of the proceeding. This provides protections similar to those provided by the Federal rules. See Fed. R. Crim. P. 15(d);Fed. R. Civ. P. 30(b) and (d).
Oral deposition. The second sentence makes it clear that the deponent need not sign an oral deposition as it is taken verbatim. Since witnesses at a trial do not sign their testimony, there is no need for a deponent to sign this type of deposition. Usually oral depositions are taken because a wit- ness is to be discharged soon and is departing the area where a trial will be held. If it is a long deposition, it is frequently impossible to have it typed for signature before the deponent’s departure.
Procedure when a person is charged with contempt. The first sent- ence of the first paragraph was modified because it is not decided that certain conduct constitutes contempt until after the contempt proceedings are held.
A new second paragraph has been added to provide a procedure for the MJ who is trying a case alone.
The third paragraph has been modified for consistency with the last sentence of the fifth paragraph which is a new addition.
The fourth paragraph has been changed to provide that the MJ must instruct the court members prior to inquiring whether or not they object to the preliminary ruling.
AGO 20081A
AGO 20081A
CHAPTER 24
INSANITY

Paragraph
120b General cqtderation of general lack of mental respolzsibility. The title of this subparagraph was changed by the addition of the word “gen- eral.” The purpose of this change is to clearly distinguish between the subject matter contained herein and that contained in the new subpara- graph 120c which is entitled “Partial mental responsibility.”
The general lack of mental responsibility test has not been changed, and this is so even though the word “completely” was deleted before the word “deprived” in the fourth sentence. “Completely” was deleted as an unnecessary adverb on the basis of being redundant. Either the accused is or is not deprived of the ability to distinguish right from wrong or to adhere to the right, and the word therefore added nothing to the sentence.
Partial mental responsibility in general. This subparagraph is new to the Manual and was added on the basis of the decisions of the Court of Military Appeals in United States v. Storey, 9 USCMA 162, 25 CMR 424 (1958) ; United States v. Dunnahoe, 6 USCMA 745, 21 CMR 67 (1956) ; United States v. Carver, 6 USCMA 258, 19 CMR 384 (1955); United States v. Kunak, 5 USCMA 346, 17 CMR 346 (1954) ; United States v. Edwards, 4 USCMA 299, 15 CMR 299 (1954); and United States v. Higgins, 4 USCMA 143,15 CMR 143 (1954).
Inquiry before trial. In the second sentence of the first paragraph, “a reasonable” was substituted for “substantial” before the word “basis.” See United States v. Nix, 15 USCMA 578, 582-583, 36 CMR 76, 80-81 (1965).
Inquiry and determination by the court. The title of this paragraph was changed by the addition of the words “and determinat3on.” The new title was considered to be more descriptive of the content of this para- graph.
Presumption of sanity; reasonable doubt, burden of proof. There was substantial revision in this subparagraph. As revised the subparagraph indicates that “some evidence which could reasonably tend to show” rather than “substantial evidence tending to prove” that the accused is insane raiees insanity ,as an issue More the trial court. The “some evi-dence” test has been applicable to affirmative defense since as far back as United States v. Ginn, 1USCMA 453, 4 CMR 45 (1952), and the Court of Military Appeals has recently in United States v. Lewis, 14 USCMA 79, 82, 33 CMR 291, 294 (1963), reaffirmed that the test is applicable to the defense of insanity.

The former last two sentences of the subparagraph have been moved up for the purpose of better continuity and now appear as the fourth and fifth sentences of the subparagraph. However, the second of these (pres- ent lifth sentence) wacs mofdified because it inferred that it was iacum-
AGO 20081A
Paragraph subject to objection. Provision has been made for instructing the court
members before they indicate whether or not they object to a ruling
which is made subject to their objection U.S. v. Williams, 5 USCMA 197,
and U.S. v. Gray, 6 USCMA 615,20 CMR 331).
Evidence relating to sanity. The last sentence of the third paragraph formerly indicated that the members of the court could see medical re- ports on the issue of conducting further inquiry into the sanity of the accused only if there was an objection to the ruling of the MJ or president of a special court-martial without an MJ. That portion of the sentence was deleted and a new next to last sentence added thereafter to indicate that the court members should be made aware of applicable portions of those documents before a ruling is made. This change was necessitated by the fact that a court member cannot intelligently object to a ruling unless he knows the facts upon which it is based. See United States v. Gray, 6 USCMA 615, 619, 20 CMR 331, 335 (1956) ; Uaited States v. Williams, 5 USCMA 197, 204, 17 CMR 197, 204 (1954). The last sentence was added to this paragraph to cover the instructions that should be given when this situation arises.
Effect of mental impairment or deficiency upon sentence. The first sentence of this paragraph previously indicated that a court could consi- der evidence of mental condition of an accused in adjudging a sentence only if the issue of insanity is raised on the merits and the accused is subsequently determined to be sane. This sentence was modified to indi- cate that the court may consider any evidence with respect to mental condition of the accused which falls short of creating a reasonable doubt as to his sanity. The former restriction is of doubtful validity, conflicts with the concept of the presentation of matters in extenuation and mitiga- tion (75c), and unduly restricts the MJ’s discretion in the matter. See United States v. Cook, 11 USCMA 579,29 CMR 395 (1960).
Action by convening or higher authority. This paragraph has been expanded from one to two paragraphs.
The second sentence of the first paragraph is a new addition that indicates that when a reasonable doubt exists on review as to mental capacity at the time of trial a rehearing may be directed when the inca- pacity no longer exists. The purpose of the sentence is to dispel any doubt on the question and to provide consistency with the provisions of 122b(3). Although not specifically mentioned in the text, it should be recognized that a rehearing may also be directed when it appears that evidence tending to indicate insanity was not sufficiently developed at the trial to permit the conduct of a fair review. This is a proper procedure when the record does not raise a reasonable doubt as to sanity and when there is an indication that there is additional information relating to the sanity of the accused which should have been submitted to the members of the court. See United States v. Dunnahoe, 6 USCMA 745, 21 CMR 67 (1956).
The second sentence of the second paragraph is new, and it provides that when further inquiry on review results in a determination of a lack of mental capacity to understand the review proceedings, a conviction may not be approved or affirmed by a reviewing authority pursuant to authority under Articles 64, 65, or 66 until the accused regains the requis- ite mental capacity. This restriction is qualified by the next sentence which indicates that a lack of mental capacity will not justify a delay in setting aside a conviction which is not legally sufficient. The rules an-

AGO 20081A
Pam 27-2
Paragraph nounced in these two sentences were developed from an analysis of a number of decisions by the Court of Military Appeals relating to the question of mental incapacity of an accused during appellate review. In United States v. Wcllshington, 6 USCMA 114, 118, 19 CMR 240, 244 (1955) the Court of Military Appeals held that it was not deprived of jurisdiction be- cause of insanity arising during the appellate process. A part of the reasoning in this decision appears to be based on the fact that the Court of Military Appeals decides only legal rather than factual issues (Art. 67(d)) and that communication between attorney and client is therefore not essential at their level of appeal (6 USCMA at 119-120, 19 CMR at 245-246). No subsequent case has been found where the Court has reversed this posi- tion, and the reasoning is considered logically correct. In United States v. Bell, 6 USCMA 392, 20 CMR 108 (1955) the Court upheld its decision in Washington, and further held that neither the convening authority nor the board of review is deterred in acting on a case because of insanity arising after trial. However, in United States v. Korzeniewski, 7 USCMA 314, 22 CMR 104 (1956) the Court reversed so much of Bell that related to action by a board of review in this instance by holding that a board of review cannot proceed with the review of a case of an insane accused. Since then even this position has been qualified by decisions that a board of review ishoul,d resolve an issue lo£ incapacity I& the time of trial. (United States v. Jacks, 8 USMA 574, 25 CMR 78 (1958)) and an issue of mental responsibility at the time of the offense (United States v. Thomas, 13 USCMA 163, 32 CMR 163 (1962) ) irrespective of the fact that an accused is mentally incapacitated at the time of review. In these cases the Court clearly indicates that a mental incapacity after trial should only work to I the advantage of an accused and not to his disadvantage. These decisions can only be interpreted to mean that a conviction may not be affirmed or
I

approved while an accused is mentally incapacitated but should be re-versed when good reason exists therefor. The Court has not specifically announced that this rule is also applicable to other reviewing authorities, but it is considered sound to apply the rule to all other reviewing authori- ties who have fact finding powers (Arts. 64, 65(b) and (c), 66(c) ) since consultation between attorney and client are important when a case is before any authority having fact finding powers. The accused does not forfeit any right of a factual review by allowing the completion of re-views under Articles 67 and 69 when a mental incapacity exists during those reviews since the time limitation for petitioning for a new trial (Art. 73) is tolled while the incapacity exists. United States v. Bell, 6 USCMA 392,396, 20 CMR 108, 112 (1955).
The last sentence of the second paragraph provides new material. It provides that when new information concerning mental responsibility at the time of an offense is obtained after trial, reviewing authorities may dismiss the affected charges and specification and take appropriate action on the sentence, or direct a new trial or rehearing, as may be appropriate under the circumstances of the case. New information of this type is usually received by reviewing authorities in documentary materials. If there is no question that the infirmity exists, there is no practical reason for litigating the issue. However, the Court has indicated that since mental responsibility is an issue directly going to the guilt or innocence of an accused, if the parties cannot agree on the importance of new information before a Court of Military Review, the issue should be litigated or relitigated, as ,the cas,e may be, at a proceeding whew the! rules of evidence for trial by court-martial apply. United States v. Thomas, 13 USCMA 163,
AGO 20081A

Paragraph 168-169, 32 CMR 163, 168-169 (1962). See also CM 406421, Thomas, 32 CMR 569 (1962). It is not considered appropriate that litigation of this type be conducted before a Court of Military Review and the Court has indicated on several occasions that de novo trials are not contemplated before the Court of Military Review. United States v. Thomas, supra; United States v. Burns, 2 USCMA 400, 405, 9 CMR 30, 35 (1953). This rule is not made applicable to situations where post-trial information re- lates to an issue of incapacity since incapacity is an interlocutory question which does not extend to the guilt or innocence of an accused. See United States v. Jacks, 8 USCMA 574, 576, 25 CMR 78, 80 (1958). It is also provided that a new trial or rehearing may be directed, because although a rehearing will most frequently be resorted to, a new trial would be appro- priate when sufficient grounds exist as prescribed in 109d.
AGO 200818
Paragrag h 125
CHAPTER 25
PUNISHMENTS

General limitations on punishments. The word “will” in the first sentence of the first paragraph was changed to “should” since it is not mandatory for a court-martial to reach agreement on a sentence. United States v. Jones, 14 USCMA 177,33 CMR 389 (1963).
The last sentence in the fourth paragraph, was deleted. That sentence indicated that certain formal military duties would not be imposed as punishments. This sentence was deleted earlier by Exec. Order No. 11081, 28 Fed. Reg. 945 (1963).
The former fifth paragraph which indicated that neither confinement on bread and water nor diminished rations would be adjudged against Army and Air Force personnel was deleted. Accordingly, the present last paragraph, which relates to the subject matter formerly contained in the sixth paragraph, now indicates that this punishment may be given tb all enlisted members attached to or embarked on a vessel. However, this paragraph was revised to provide that this punishment may not be ad- judged in excess of three days rather than thirty as previously provided. In United States v. Wappler, 2 USCMA 393, 396, 9 CMR 23, 26 (1953) the Court of Military Appeals held that three days was the maximum period for which this punishment could be adjudged by courts-martial, and als’o that it could be adjudged against personnel of any service when attached to or embarked on a vessel. Since confinement on bread and water or diminished rations can only be adjudged for three days there is no longer any valid reason to limit this punishment to any particular service. Army and Air Force personnel are subject to this punishment under Article 15 when aboard ship, and the revision of this paragraph provides consistency with that article. See also 131c (5).
A second sentence was added to the present last paragraph authoriz- ing the limitation by regulations of the categories of enlisted personnel upon whom this type of punishment may be imposed. This is also consist- ent with a similar provision regarding the punishment under Article 15. See 131c(5).
All material was deleted throughout 125 which previously indicated that solitary confinement was an authorized punishment, and the third sentence of the last paragraph now specifically states that it is not author- ized. United States v. Stiles, 9 USCMA 384, 26 CMR 164 (1958), held that solitary confinement could not be adjudged by courts-martial.
The certificate in the last paragraph has been modified by the addi- tion of the following words: “to confinement no (bread and water) (dim- inished rations) .” This was done to make the certificate more specific.
General comments on miscellaneous limitations on punishments. This matter formerly covered in the second and third sentences of the first 126a
AGO 20081A
Pam 27-2
Paragraph paragraph was revised in the interest of clarity. As formerly written it did not tie together the effect of the Table of Maximum Punishments and provisions for punishment in the Punitive Articles.
The last sentence of the first paragraph formerly indicated that when life imprisonment is adjudged, the court shall also adjudge dishonorable discharge and total forfeitures. This sentence was deleted as being the type of sentence policy statement that has been condemned by the Court of Military Appeals. It is true that the Court has never declared this particular provision illegal and as a matter of fact has sidestepped declar- ing it illegal by holding that an instruction of this type to a court was not prejudicial error under the facts of one case. United States v. Jmes, 10 USCMA 122, 27 CMR 196 (1959). However, there is little doubt that this instruction would be held to be prejudicial error in other circumstances. It is also inconsistent with the present theory that all types of punishment are separate. Since instructions to courts-martial on similar policy state- ments in the Manual have been held to be error, this statement was not retained. See United States v. Jobe, 10 USCMA 276, 27 CMR 350 (1959) ; United States v. Smith, 10 USCMA 152, 27 CMR 227 (1959); United States v. Vamadwe, 9 USCMA 471, 26 CMR 251 (1958) ;United States v. Durzn, 9 USCMA 388, 26 CMR 168 (1958). Since the Court should not be instructed on this policy, there was no valid reason to retain the sentence in the Manual. To retain it would only increase the possibility that court members will be disqualified for courts-martial because of pretrial in- struction on this policy. See the language in United States v. Johnson, 14 USCMA 548, 34 CMR 328 (1964), which strongly criticizes the exertion of command influence on sentences by pretrial lectures and also the many cases cited in Johnson which deal with unlawful command influence.
A cross reference to 145 has been added at the end of the second paragraph, and the former third paragraph which simply repeated mate- rial contained in 145 was deleted. That paragraph was incomplete in that it dealt only with use of proceedings of a court inquiry. The use of depositions and former testimony have a similar effect on .the maximum punishment.
The second sentence of the third paragraph was formerly the next to last sentence of the first paragraph.
The first sentence of the last paragraph is new and provides that a court-martial may adjudge no separation other than a dishonorable or bad-conduct discharge or a dismissal as appropriate according to the status of the accused. In United States v. Phipps, 12 USCMA 14, 30 CMR 14 (1960), it was held that a court-martial may not adjudge an adminis- trative discharge.
A sentence was added to refer to the jurisdictional limitation of a GCM composed of an MJ alone.
Limitations on pwnnishnnents by special courts-martial. Details for- merly contained in this subparagraph were deleted, and it now contains only a cross reference to 15b and Article 19 which contain the deleted information. Also, the previous treatment could be confusing as it did not clearly indicate that the listed limitations were purely jurisdictional. For example, 126g limits the punishment of restriction to two months by any type of court.
AGO 20081A

Paragraph 126c(2) Limitations on punishments by summary courts-martial. Details for-
merly contained in this subparagraph were deleted, and it now contains only a cross reference to 16b and Article 20 which contain the deleted information.
Limitations on punislzing commissioned and warrant officers. This subparagraph was reorganized so that all matters pertaining to reduction are discussed in the first paragraph, those regarding separation are cov- ered in the second paragraph, and those dealing with deprivation of liberty are dealt with in the third paragraph. This reorganization was necessary in the interest of clarity as the prior treatment failed to provide needed continuity.
It is now made clear that commissioned officers and commissioned and warrant officers are punitively separated by dismissals whereas war- rant officers who receive their warrants from a service secretary are punitively separated by dishonorable discharge. See United States v. Bris-coe, 13 USCMA 510,33 CMR 42 (1963).
This subparagraph no longer indicates that an officer or warrant officer shall not be sentenced to confinement or total forfeitures unless the sentence also contains a punitive separation. The reasons for this deletion are the same as those given for deletions in 126a. See the second para- graph of the discussion of changes as to 126a, supra. Additionally, in United States v. Smith, 10 USCMA 152, 27 CMR 227 (1959), it was specifically held to be error to instruct a court that an officer cannot be sentenced to confinement unless also sentenced to a dismissal. This hold- ing has more recently been reaffirmed in United States v. Madison, 14 USCMA 655,658-659,34 CMR 435,438-439 (1964).
A provision was added in the first sentence of the third paragraph to indicate that only a general court can sentence a commissioned or warrant officer to confinement. This was done to compensate for the removal of this limitation with the deletion of the restriction that an officer would not be sentenced to confinement without a dismissal. The added provision was inherent in this deleted material since a special court-martial cannot ad- judge a dismissal.
Limitations on punishing enlisted persons; prisoners sentenced to punitive discharge. The provisions of Article 58a were incorporated into the first paragraph.
Limitations on forfeiture, fine, and ,detention of pay in, general. !The first sentence of the first paragraph was modified to indicate that forfei- tures, fines, and detentions of pay will be expressed in even dollars rather than dollars and cents. This agrees with the provisions of the Manual relative to these forms of punishment under Article 15. See 131c(8). It was felt that rules concerning these forms of punishment should be in accord whether the punishment is adjudged by courts-martial or imposed under Article 15. The change will serve to prevent confusion, and there appeared to be no good reason to have differing rules on this subject.
Limitations on forfeitures. The limitation formerly contained in the third sentence of the first paragraph that forfeiture of all pay and allow- ances may be adjudged only when the accused is sentenced to a punitive discharge was deleted. Similarly, the limitation that a general court-mar- tial may not adjudge a forfeiture in excess of two-thirds pay per month

AGO 20081A

Pam 27-2
Paragraph
for 6 months against an enlisted man unless it also adjudges a punitive
discharge was deleted from the next to last sentence of the first para-
graph. The reasons for these deletions are the same as those given for
deletions in 126a. See the second paragraph of the discussion of changes
as to 126a, supra, and United States v. Jobe, 10 USCMA 276, 27 CMR 350
(1959) which specifically condemns these limitations.

The last sentence of the second paragraph formerly indicated that unless a dishonorable or bad-conduct discharge is adjudged, the monthly contribution of an enlisted person to family allowance or basic allowance for quarters would be deducted prior to computing the net amount of pay subject to forfeiture. The sentence was deleted because it improperly inferred that a general court-martial could not adjudge total forfeitures when an accused was making one of these contributions unless a punitive discharge was also adjudged (see United States v. Jobe, supra), it unde- sirably inferred that a special court-martial adjudging a bad-conduct dis- charge did not have to consider the contribution in determining the maxi- mum allowable forfeiture, and it was no longer up to date with the statutes dealing with basic allowances for quarters. The third and fourth sentences of this paragraph are new additions which compensate for deletion of this former provision and the changes in the law relating to the subject. See Dependent’s Assistance Act of 1950, Ch. 922, 64 Stat. 794 (amended by 8 4, 76 Stat. 152 (1962)) (now 50 App. U.S.C. 55 2201-2216). Also, this is consistent with the provision contained in Manual for Courts-Martial, 1951, para 126h (Addendum, 1963).
Limitations on fines. The following was deleted from the end of the second sentence of the first paragraph: “in all cases in which the applica- ble article authorizes punishment as a court-martial may direct.” The deletion was accomplished for the purpose of removing excess verbiage which no longer has any significance. The deleted material first appeared in the MCM of 1949 at paragraph 116g. The drafters of the MCM of 1949, in Seminars Concerning the Manual for Courts-Martial, 19.49, at page 95, did not clarify the reason for this inclusion. However, study of the context in which the words were used in the MCM, 1949, leads to the conclusion that they were used to distinguish a problem concerning fines that was peculiar to the Articles of War of 1920, as amended, which were applica- ble at that time. See MCM, 1949, appendix 1. Apparently the words were used to describe those other Articles of War for which a fine was an authorized punishment in addition to A.W. 80 and A.W. 94 which ex-pressly authorized fines for the -offenses of dealing in captured or aban- doned property and fraud against the government, respectively. These words were also significant because A.W. 88, unlawfully influencing the action of a court, made no reference to punishment that may be adjudged. In the Code, A.W. 80 was incorporated into Article 103 and A.W. 94 into Article 132 which do not expressly authorize fines for these offenses. A.W. 88 was replaced by Article 37 of the Code where it is no longer included among the punitive articles. However, a violation of Article 37 is punisha- ble under Article 98 which provides for punishment as a court-martial may direct. With these changes in the Code, there is no longer any puni- tive article which fails to provide for punishment or which expressly provides for a fine. Accordingly, the deleted portion of this sentence was also excess verbiage in the 1951 Manual as the need for these descriptive words disappeared with the enactment of the Code.
AGO 20081A

Paragraph
The former third sentence which stated that a fine would not be adjudged against an enlisted person unless the case falls within Section B, 127c, was deleted. This deletion was necessitated by deletion of the refer- enced material which was contained in the first sentence of the former third paragraph, Section B, 127c, and which indicated that a fine may be adjudged against any enlisted person, in lieu of forfeitures, provided a punitive discharge is also adjudged. These deletions are based on the holding in United States v. Landry, 14 USCMA 553, 34 CMR 333 (1964).
This subparagraph and the fourth paragraph of section B, 127c, as now written, make a fine when adjudged by a general court-martial a truly additional punishment.
The fourth sentence of the first paragraph is a new addition which simply makes cross reference to Section B, 127c, for information concern- ing authority of a general court-martial to adjudge a fine as an additional punishment. In regard to fines, Section B, 127c, now simply provides in the fourth paragraph that a general court-martial may adjudge a fine as an additional punishment in an appropriate case. Of course, as pointed out in the next to last sentence of the first paragraph of 126h(3), an appropriate case is when an unjust enrichment is involved. Section B, 127c, now gives a general court-martial authority to fine both officers and enlisted members in addition to adjudging total forfeitures. There ap- pears to be no sound reason to distinguish between officers and enlisted members in this regard. It was noted that the Court of Military Appeals has interpreted the former Manual provisions to mean that a fine could be adjudged against an enlisted member only in lieu of forfeitures. United States v. Hounshell, 7 USCMA 3, 21 CMR 129 (1956). Under this inter- pretation a fine would not be an additional punishment in a strict sense.
The second sentence of the first paragraph has always indicated that fines could be adjudged as a punishment which was substituted for forfei- tures. Therefore the statement now made in the newly added fifth sent- ence of the first paragraph has always been the law, although it was not so clearly stated. The sentence also has for a basis the decision in ACM S-19148, Papenhagen, 29 CMR 890 (1960). In view of this sentence, the statement that a fine may be adjudged against any enlisted person in lieu of forfeitures was deleted from Section B, 127c. If it is “in lieu of,” it is truly not an additional punishment and should be covered here rather than there. There appeared to be no valid reason to distinguish between the maximum amount that a special court-martial may fine enlisted mem- bers and officers.
The next to last sentence of the first paragraph is new. It indicates that a fine should normally be adjudged against a member of an armed force only when the accused was unjustly enriched as a result of the offense of which he was convicted. The last sentence of this paragraph is also new. It points out that a fine may always be adjudged for contempt. Both of these sentences contain information which was transferred to this paragraph from the third paragraph, section B, 127c for the reason that it is more appropriate to include this information with limitations rather than additional punishments.
Limitations on detention of pay. This subparagraph was substan-tially modified as it was felit essential to prescribe some basic rules for this punishment. The provision that detention of pay may only be ad- judged by a court-martial against enlisted persons was deleted. There 126h(4)

AGO 20081A

Pam 27-2
Paragraph appeared to be no good reason to distinguish between officers and enlisted members, and the prohibition was inconsistent with Article 15(b) (1) (B) (iv) which permits detention of an officer’s pay. The subpar- agraph now provides that the detention period may not exceed one year from the date the sentence is ordered executed, whereas there was for- merly no limitation. The limitation is consistent with the limitation pre- scribed in Article 15(b) as to detention of pay under that article. It was felt that there should be some limitation on how long pay may be de- tained, and one year was considered reasonable. If a more severe mone- tary punishment is desired, forfeiture of pay is the appropriate punish- ment. The limitations as to the amount that may be detained, now con- tained in the fourth sentence, were moved from the former third para- graph of 127b. It was felt that the entire subject should be covered in one place. A new provision in this paragraph further provides that the maxi- mum amount of pay that may be detained is determined by the rules used in determining maximum partial forfeitures. It is further provided that detained pay will be returned to the accused at the expiration of the period of detention or when his term of service expires, whichever is earlier. This is consistent with a similar provision in Article 15(b). See, also 131c(9). A detention of pay until separated from the service, as previously indicated as the only time it is returned, would be too severe in many cases.
Suspension from rank, command, or duty; loss1 of rank, wornotion, numbers, or seniority. The former first three paragraphs were deleted and the sentence now comprising tlie first paragraph was modified to indicate that suspension from rank, command, or duty are not authorized as sent- ences for anyone. These punishments were not considered useful as pun- ishments in the present day, although it is realized that they served their purpose in former days when because of the restricted size of the military community the resulting dishonor was the important part of the punish- ment. Today, suspension from rank, command, or duty actually punishes the military services, which are deprived of the full service of the person, rather than punishing the person. The placing of a person in a restricted category of these types is an administrative function rather than a puni- tive measure, and therefore should be handled similar to other personnel management problems. See United States v. Phipps, 12 USCMA 14, 30 CMR 14 (1960), for an example of one administrative measure considered inappropriate as punishment. This change also provides uniformity as they are not presently authorized as punishments against Navy personnel.
The sentence now comprising the second paragraph was modified by adding “except as provided below” at the end thereof because the punish- ments discussed in the present third paragraph are really a loss of rank. See the definition of “rank” in 10 U.S.C. 5 101 (19) (1964).
Limitations on confinement at hard labor. The former second sent- ence of the first paragraph, indicating that an officer would not be sent- enced to a punitive separation, was deleted to conform with the deletion of the same limitation in 126d. See the reasons given for this deletion in the third paragraph of the discussion of changes as to 126d, supra.
The third sentence of the first paragraph was also deleted. This sentence had indicated that only under unusual circumstances should an enlisted person be sentenced to confinement without a sentence to forfei- ture or fine. The reasons for this deletion are the same as the reasons
AGO 20081A

Paragraph given for similar deletions in 126a. See the reasons given for those dele- tions in the second paragraph of the discussion of the changes as to 126a,
supra.
In the first sentence of the last paragraph, the word “should” was substituted for the word “will” on the basis of United States v. Dunn, 9 USCMA 388,26 CMR 168 (1958).
The maximum limits of punishments as to persons and offenses. h he cross reference to Section B, 127c, formerly in the second sentence, was deleted. That cross reference was made to point out an exception to the rule that the limitations in the Table of Maximum Punishments are not binding on courts-martial sentencing officers, warrant officers, aviation cadets, cadets, midshipmen, and civilians. The cross reference is no longer applicable since the exception was deleted from Section B, 127c, and that section no longer contains any limitations and deals exclusively with addi- tional punishments.
General limitations concerning the maximum limits of punishments. That portion of the first paragraph, which recited the specific limitations on special and summary courts-martial in adjudging sentences, was re- placed by a cross reference to 15b and 16b which provide the same infor- mation in detail.
All material that was contained in the remaining paragraphs .of this subparagraph was deleted. The second paragraph formerly provided that, unless a dishonorable discharge or bad-conduct discharge was adjudged, a court-martial could not adjudge a forfeiture of pay greater than two- thirds pay per month for 6 months or confinement in excess of 6 months. These limitations were condemned in United States v. Jobe, 10 USCMA 276, 27 CMR 350 (1959), and United States v. Varnadore, 9 USCMA 471, 26 CMR 251 (1958), respectively. Consistent with this deletion, the for- mer last paragraph which provided that an accused could not as a result of one or more sentences which do not include a punitive discharge or other stoppages or deductions forfeit more than two-thirds of his pay in any month was deleted. The reasons given for deletions in the second paragraph of the discussion of changes as to 126a, supra, are also applica- ble to these deletions. However, it was considered appropriate to add a limitation in 88b that a person should not be required to forfeit more than two-thirds pay per month unless serving confinement.
The former third paragraph provided that detention of pay could not exceed two-thirds pay per month for three months. This paragraph was deleted and detention of pay has been covered fully in 126h(4).
Maximum punishments. The subparagraph was further subpara-graphed into numerically designated subparagraphs. It was felt that this was necessary in the interests of clarity and ease of reading because of the length of the subparagraph and the many subjects covered.
Applicability and use of Table of Maximum Punishments. The last sentence of the first paragraph now provides that when an offense not listed in the table is closely related to more than one listed offense, the maximum punishment for the most closely related offense shall be used to determine the maximum authorized punishment. This new addition is based on the decision in United States v. Alexander, 3 USCMA 346, 349-350,12 CMR 102,105-106 (1953).

AGO 20081A
Pam 27-2
Paragraph

The second and third sentences in the second paragraph ‘are also new additions. These additions are based on United States u. White, 12 USCMA 599,31 CMR 185 (1962).
Applicability and use of Table of Equivalent Punishments. That por- tion of the what is now the second sentence of the first paragraph which previously indicated that the Table of Equivalent Punishments could not be used if a punitive discharge was adjudged was deleted. This deletion is consistent with the deletion of other policy statements in this chapter. See the second paragraph of the discussion of changes in 126a, supra. Of course, the statement that the table is only applicable in the case of enlisted members has always been true. See the last sentence of the sixth paragraph of 127e in the 1951 Manual.
The former provision in the Table of Equivalent Punishments limit- ing confinement on bread and water or diminished rations to Navy and Coast Guard personnel was deleted. This provision has been replaced by a provision that these punishments may not be adjudged in excess of 3 days. See the third paragraph of the discussion of changes in 125, supra, for the reasons for these changes.
The first sentence of what is now the second paragraph was modified to delete the repeating of information contained in the Table of Equiva- lent Punishments. The example of the use of this table as given in the second and third sentences of this paragraph was modified for the reason that the former example improperly inferred that the Table of Maximum Punishments expressed maximum forfeitures in terms of days’ pay. The example of use of equivalent punishments when an accused was convicted of usury was deleted as unnecessary to the paragraph as well as because of the decision in United States v. Day, 11USCMA 549, 29 CMR 365 (1960) which held that usury is an offense only when committed in violation of an order or statute prohibiting it. The former last sentence of the sixth paragraph was not included in this paragraph. The portion of that sent- ence which indicated that the Table of Equivalent Punishments could only be used by the court in cases involving enlisted personnel was included in the first paragraph. The sentence also provided that the .table could not be used by the convening or higher authority. This provision was not consist- ent with the convening authority’s power to commute sentences as set forth in 88c, and it is felt that the table could now be a useful guide when this power is exercised.
Computation of period of unauthorized absence. The last two sent- ences of this subparagraph, giving an example of computing the period of an unauthorized absence, are new additions which were added in the interest of clarity.
Automatic suspension of limitations. Violations of Article 91 (1) and
(2) were added to the others for which limitations on punishments shall be suspended automatically upon declaration of war. This addition was made because it was felt that in time of war assaults against and willful disobedience towards warrant officers, non-commissioned officers, and petty officers are equally as serious as these offenses committed against commissioned officers. Where the Manual previously provided for auto- matic suspension of limitations on punishments for all Article 86 offenses upon declaration of war, the automatic suspension is now made applicable only to Article 86(3) offenses as it was felt that the former provision was too stringent. As changed this subparagraph is now consistent with the
AGO 20081A

Paragraph action taken by the President in suspending the limitations in the table on certain offenses during the Korean War. See Exec. Order No. 10247, 16 Fed. Reg. 5035 (1951).
The footnote to this subparagraph, which appeared on page 217 of the 1951 Manual was not incorporated in this Manual. That footnote included information regarding the lifting of punishment limitations be- tween 1942 and 1950. It was felt that inclusion of this information in this Manual was not warranted because of its present limited application.

Section A, paragraph 127c TABLE OF MAXIMUM PUNISHMENTS
General. The values of $20 and $50 upon which many punishments were for- merly based have been changed to $50 and $100, respectively. Where a dishonorable discharge was formerly authorized for a violation involving a value of $50 or less, now only a bad-conduct discharge is authorized when the value is $100 or less. The offenses affected by this change involve captured and abandoned property (Art. 103) ;loss, damage, de- struction, and wrongful disposition of military property (Art. 108) ; waste, spoiling, and destruction of property other than military property (Art. 109) ;larceny and wrongful appropriation (Art. 121) ;certain frauds against the United States (Art. 132) ;knowingly receiving, buying and concealing stolen property (Art. 134). This treatment is identical with that used in prescribing maximum punishments for offenses in violation of Article 123a in Exec. Order No. 11009. 27 Fed. Reg. 2585 (1962). The reasons for adopting this method of prescribing the maximum punish- ments as well as the reasons for prescribing the type of discharges au- thorized under Article 123a are simildrly applicable to the same matters Under the articles listed above. In implementing Article 123a, the drafters of the change in the table were careful to preserve the felony-misde- meanor distinctions in setting maximum punishments. By limiting dishon- orable discharges and confinement for more than a year to only those cases where the value involved exceeds $100, the modern approach of limiting felony punishments in larceny type cases to thefts of property of a value of over $100 was followed. See, e.g., 18 U.S.C. $§ 641, 661 (1964). Additionally, such a treatment is realistic and practical in view of the deceased value of the dollar since 1951.
Art. 86 Absence without leave. The provisions fo Exec. Order No. 10565, 19 Fed. Reg. 6299 (1954), increasing the maximum punishments, were incor- porated in the table.
Art. 87 Missing movement of ship, aircraft or unit. The provisions of Exec. Order No. 10565, 19 Fed. Reg. 6299 (1954), increasing the maximum punishments, were incorporated in the table.
Art. 92 Violating or failing to obey any lawful general order or regulation and knowingly failing to obey any other lawful order. Footnote 5, for- merljr providing that the maximum punishment for these offenses did not apply in cases wherein the accused is found guilty of an offense which is specifically listed elsewhere in the table even though the offense involved a failure to obey a lawful order, was changed. It now provides that the punishments listed do not apply if in the absence of the violated order, the accused would be subject to conviction for another specific offense for which a lesser punishment is prescribed in the table, or if the violation is a breach of restraint that was imposed as a result of an order.
AGO 20081A

Pam 27-2
Paragraph

The revision of footnote 5 was made after consideration of the deci- sions in United States v. Porter, 11 USCMA 170, 28 CMR 394 (1960); United States v. Dozier, 9. USCMA 443, 26 CMR 223 (1958) ; United States v. Renton, 8 USCMA 697, 25 CMR 201 (1958) ; United States v. Brown, 8 USCMA 516, 25 CMR 20 (1957) ; United States v. Hammock, 8 USCMA 245, 24 CMR 55 (1957); United States v. Alberico, 7 USCMA 757, 23 CMR 221 (1957) ; United States v. Lowe, 4 USCMA 654, 16 CMR 228 (1954) ; United States v. Loos, 4 USCMA 478, 16 CMR 52 (1954) ; United States v. Yunque-Burgos, 3 USCMA 498, 13 CMR 54 (1953); United States v. Larney, 2 USCMA 563, 10 CMR 61 (1953); United States v. McNeely, 1USCMA 510, 4 CMR 102 (1952) ;and United States
v. Buckmiller, 1 USCMA 504, 4 CMR 96 (1952). Analysis of the above decisions indicates that the Court of Military Appeals was really saying that if an offense exists without an order being given it falls within footnote 5. In other instances, particularly, minor violations of orders, the Court tends to rely on the maximum punishment prescribed for another offense which is closely related to the one set out as an Article 92 viola- tion. A primary evil that footnote 5 is intended to prevent is an increase of punishment for an offense already prescribed by the issuance of an order so as to lay a charge under Article 92. The new footnote 5 unques- tionably prevents this evil. It is considered impractical to adopt the closely related offense rule into footnote 5 because of the difficulty of application, for instance, whether a certain offense is more closely related to being a disorder under Article 134 or to being a violation of a lawful order. However, the maximum prescribed for violations of orders under Article 92 is really no different that the maximum prescribed for violations of other articles in that the punishment prescribed acts as a ceiling and is not intended to prescribe an appropriate sentence in individual cases. This determination is left to the discretion of the court based on the facts and circumstances and the type of violation just as with other offenses. See 76a(l). Just as the members of the court would undoubtedly adjudge a lighter sentence for a nonaggravated robbery than for an aggravated one, so also should they adjudge a lighter sentence for nonserious violations of orders under Article 92 than for violations which amount to serious offen- ses. See 76a(2). In other words, when the new footnote 5 does not apply, the appropriateness of the sentence for the type of violation is left properly to the discretion of the court members.
It was also noted that the recent decision in the United States v. Showalter, 15 USCMA 410, 35 CMR 382 (1965) support the conclusions stated in the above paragraph; ~lthough the opinion in that case distin- guishes Unit.ed States v. Yunqz~e-Burgos, supra, in effect it really over-rules that decision which previously could be interpreted as contrary to the above conclusions. However, a study of the cases cited above which followed Yunque-Burgos indicated even before the Showalter decision that Yunque-Burgos was eventually bound to be overruled.
Additionally, it was noted that in the United States v. Buckmiller, supra, the decision which established the “gravamen test,” the offense was incorrectly laid under Article 92 and it should have been laid under Article 90 for willful disobedience. Also, any test s@kd in terms of the gravamen of an offense is too indefinite for application in the field, partic- ularly for trials by special court-martial.
The limitation for violations of conditions of restraint imposed as a result of an order was added,because restraint is always imposed by some
AGO 20081A

Art. 108
Art. 110
Art. 113
Art. 121
Art. 123a
Art. 125
Pam 27-2
type of order and hence is an exception to the first limitation in that punishments for these violations are prescribed elsewhere in the table.
Loss, damage, destruction, or wrongful disposiiton of military prop- erty. In addition to the changes discussed above under “General,” where negligence is involved and the amount is more than $100 a bad-conduct discharge is authorized rather than a dishonorable discharge. This was considered appropriate in a case of neglect and is consistent with provid- ing for a bad-conduct discharge for a negligent homicide conviction under Article 134.
Improper hazarding of a vessel. This portion of the table was revised to indicate clearly that the maximum punishment provided relates to situations involving negligence and that no maximum is provided when the act is willful and wrongful. The method now used in describing the offenses is consistent with the method used for Articles 99, 100, and others where no maximum is prescribed.
Misbehavio~of sentinel or lookout. A new maximum punishment was provided for this offense when committed in an area where hostile fire pay is authorized. The same change was made in the 1951 Manual by Exec. Order No. 11317,31 Fed. Reg. 15305 (1966).
Wrongful appropriation of property. The wrongful appropriation of an aircraft or vessel was added to the category of offenses carrying a dishonorable discharge and confinement at hard labor for two years. See United States v. Webber, 13 USCMA 536, 33 CMR 68 (1963), which held that since the Table of Maximum Punishments did not specify a maxi-mum punishment for wrongful appropriation of an aircraft, the maxi- mum applicable was that prescribed for other private property. Also see the National Motor Vehicle Theft Act, 18 U.S.C. $5 2311,2312 (1964), which prescribes the same maximum punishment for the offense of transporting an aircraft or motor vehicle in interstate or foreign commerce. The wrongful appropriation of a vessel was added because it was felt to be equally as serious as the wrongful appropriation of a motor vehicle or aircraft.
In order to end the anomaly by which larceny of a motor vehicle, aircraft or vessel values at less than $100 was subject to a lesser maxi- mum punishment than the wrongful appropriation of the same property, a specific punishment was stated for such theft regardless of the value of the stolen vehicle.
Making, drawing, or uttering check, draft, or order without sufficient funds. The maximum punishment has been incorporated in the table as provided in Exec. Order No. 11009,27 Fed. Reg. 2585 (1962).
Sodomy. The punishment for sodomy is now broken down into three categories, whereas formerly only one punishment was provided for this offense. The maximum limits are now 10 years confinement and a dishon- orable discharge if the sodomy is accomplished by force and without consent, 20 years confinement and a dishonorable discharge if the act is committed with a child under 16 years of age, and confinement for 5 years and a dis- honorable discharge in other cases. This was done to avoid the situation in which similar offense laid under Article 134, for example, indecent liberties or assault with intent to commit sodomy, which fall short of a consummated sodomy, were punishable by a greater punishment than the sodomy itself. See United States v. Williams, 9 USCMA 55, 25 CMR 317 (1958) ; United

AGO 20081A

Pam 27-2
Art. 126
Art. 128
Art. 132
Art. 134
Art. 134
Art. 134
Art. 134
Art. 134

States v. Morgan, 8 USCMA 341,24 CMR 151 (1957). The determination of an appropriate maximum for the two aggravated forms of sodomy was influenced by the maximum punishment of 10 years imprisonment for any sodomy and 20 years imprisonment for sodomy with a child in the District of Columbia. D. C. Code $ 22-3502 (1961). Of course, if both forms of aggravation are alleged in one specification, the most severe punishment would be the authorized maximum.
Arson. The values were changed from $50 to $100 for consistency with the changes discussed above in the first paragraph under “General.” However, the type of discharge was not changed for a simple arson where the value involved is $100 or less. This was not changed because values are not the most important consideration in setting a punishment for this offense.
Assault. Punishments for assaults upon commissioned officers, war- rant officers, noncommissioned and petty officers, persons executing police type duties, and sentinels and lookouts, and consummated assault upon a child under 16 years of age, were moved under Article 128 from under Article 134. It has been held that assaults of this type, aggravated because of the type of victim, should be charged under Article 128 although punishments formerly listed under’ Article 134 were. held applicable. United States v. Ragan, 14 USCMA 119, 123, 33 CMR 331, 335 (1963) ; United States v. McCormick, 12 USCMA 26, 30 CMR 26 (1960) (concur-ring opinion, Latimer, J.).
Frauds against the United States. The descriptions of the offenses under this article have been modified for the purpose of clarity. All types of offenses contained in Article 132 now can be placed within one of the two categories for which punishments are prescribed without any ques- tion. The former descriptions had caused some difficulty in this regard. See United States v. Smith, 7 USCMA 102,21 CMR 228 (1956).
Assault. Punishments for assaults upon commissioned officers, war- rant officers, noncommissioned and petty officers, and persons executing police type duties, and consummated assault upon a child under 16 years of age were moved from here and are listed under Article 128. For the reasons for this change see the discussion of changes in punishments under Article 128, supra.
Assault with intent to commit housebreaking. The punishment was reduced from ten to 5 years’ confinement as this was considered adequate. It was noted that a murder committed while housebreaking is not a felony murder under Article 118 (4).
Burning with intent to defraud. This is a new addition to the table, which was added because of United States v. Fuller, 9 USCMA 143, 25 CMR 405 (1958). The punishment provided in D. C. Code $ 22-402 (1961) was noted in selecting an appropriate maximum punishment. However, 15 years’ confinement was considered too severe, and it was determined that 10 years is appropriate.
Check, worthless making and uttering. The maximum punishment was changed from 4 months’ confinement and partial forfeitures to bad- conduct discharge, 6 months’ confinement, and total forfeitures for uni- formity with the bad debt offense under Article 134 as this offense was considered equally as serious as that one.
Correctional custody, escape from and breach of restraint during.
The punishments prescribed in Exec. Order No. 11081, 28 Fed. Reg. 945
(1963) were incorporated into the table.
AGO 20081A
Pam 27-2

Art. 1.34
Art. 134

Art. 134

Art. 134

Art. 134

Art. 134
AGO 20081A

Criminal libel. This is a new addition which is based on United States
v. Grosso, 7 USCMA 566, 23 CMR 30 (1957). The punishment prescribed is patterned after D. C. Code 822-2301 (1961).
Debt, dishonorably failing to pay. The type of discharge authorized was reduced from a dishonorable discharge to bad-conduct discharge. The reason for this change is that a comparison of this offense with a worth- less check offense under this article indicates that the former maximum was too severe. The former description of this offense as “Debt, just, failing to pay, under such circumstances as to bring discredit upon the military service” was changed because of the decision in United States v. Schneiderman, 12 USCMA 494,31 CMR 80 (1961).
Drugs, habit forming or marihuana, wrongful possession, sale, trans- fer, use or introduction into a militarq unit, station, base, post, ship or aircraft. Based on past decisions it was considered appropriate to add sale (see, e.g., ACM 10261, Simmons, 19 CMR 640 (1955)), wrongful intro- duction into installations (United States v. Jones, 2 USCMA 80, 6 CMR 80 ,(1952)), and transfer (United States v. Blair, 10 USCMA 161, 27 CMR 235 (1959)) to the drug and marihuana offenses for which a punish- ment is prescribed. “Aircraft” was added for completeness.
Drunk. A punishment was added for drunk aboard ship. This is consistent with the punishments prescribed under “disorderly” and “drunk and disorderly” which also specifically prescribe a punishment when the offenses are committed aboard ship.
False or unauthorized military pass, permit, discharge certificate, or identification card. The listing of identification card under this offense is new. In United States v. Oakley, 11USCMA 529, 29 CMR 345 (1960), the Court of Military Appeals held that identification card offenses were not punishable as prescribed by 18 U.S.C. 5 499 (1964) and that since no punishment was prescribed in the Manual, the maximum punishment was 6 months’ confinement at hard labor under 18 U.S.C. 5 701 (1964). The problem should not be eliminated by providing a punishment for identifi- cation card offenses in the Table of Maximum Punishments.
A new breakdown has been provided for these offenses based on the decision in United States v. Blue, 3 USCMA 550, 13 CMR 106 (1953) which recognized the existence of the less serious offenses of possessing, using, or disposing of these documents without intent to defraud or de- ceive. As now written, any wrongful making, altering or selling is punish- able by a dishonorable discharge, confinement at hard labor for three years, and total foifeitures, but possessing or using is so punishable only if there is an intent to defraud or deceive. Without this intent, these latter offenses are only punishable as provided for “other cases.” Wrongful dispositions other than selling are also punishable under “other cases.” Wrongful disposition does not include the same type of aggravated intent to deceive or defraud as in the case with possessing or using and was not considered as serious as making, altering, or selling. However, the former maximum punishment of four months’ confinement and partial forfeitures for “other cases” was considered inadequate, and it was changed to bad- conduct discharge, 6 months’ confinement, and total forfeitures.
False pretenses, obtaining services under. This is a new midition which was added in view of the decision in the United States v. Herndon, 15 USCMA 510, 36 CMR 8 (1965), and because it is a common offense in the military. The maximum punishment prescribed is the same as that for
Pam 27-2
Art. 134
Art. 134

Art. 134
Art. 134

larceny (Art. 121). It was felt that since the offense is so similar to larceny the same punishment would be appropriate. In arriving at this determination 18 U.S.C. 5 1025 (1964) and D. C. Code $ 22-1301 (1961) were considered.
Indecent, insulting, or obscene language. A punishment was added for this offense when communicated to any child under 16 years of age. In CM 412158, Knowles, 7 January 1965, the accused was charged with two specifications of taking indecent liberties with children by communicating obscene language over the telephone. The victim in one specification was a female child, and the victim in the other specification was a male child. The board held that the specifications did not set out the offense of indecent liberties, that the offense against the female child was punishable by a maximum of confinement for one year and a dishonorable discharge as provided in the table for communicating obscene language to a female, and that the offense against the male child was punishable by a maximum of confinement for 4 months as listed for a disorder. On certification by the Judge Advocate General of the Army, the Court of Military Appeals held that the board was correct in holding that the specifications did not set out the offense of indecent liberties. United States v. Knowles, 15 USCMA 404, 35 CMR 376 (1965). However, the Court did not comment, nor was it required to do so, as to the holding of the board in distinguish- ing between the maximum permissible punishments for the male and female child. In keeping with the public policy protecting children, the same punishment has been prescribed for commission against a child of either sex. The modifications made in this portion of the table were influ- enced by provisions of the D. C. Code which provide a maximum of one year imprisonment or a fine of $1,000, or both, for similar offenses against children, male or female. D. C. Code $ 22-1112(b) (1961). How- ever, a period of two years’ confinement was adopted as the maximum punishment. It was felt that the punishment for this offense when commu- nicated to a female of the age of 16 years or over should not be decreased even though the punishment authorized for this offense in D. C. Code 5 22-1112(a) (1961) is considerably less than that provided in the 1951 Manual. The reason is that obscene phone calls are a frequent and serious problem in the military because so many dependents reside on or near military installations. In view of the increased aggravation when the communication is to a child under 16 years of age, it was felt that 2 years was an appropriate maximum.
a

Footnote 6 was added to make it clear that the communication of this language may be charged as indecent acts or liberties with a child if the communication is in the physical presence of a child.
Loaning money at usurious rates of interest. There is no longer a punishment prescribed for this offense. See United States v. Day, 11 USCMA 549, 29 CMR 365 (1960). Pursuant to the Day case, this now constitutes an offense only when contrary to an order or regulation or prohibited by statute, and in these instances other maximum punishment provisions will control.
Obstructing justice. This is a new addition to the table (see ACM 17112, Daminger, 30 CMR 826 (1960) and the punishment listed is based upon 18 U.S.C. 5 1503 (1964).
Refusing, wrongfully, to testify. Refusal to testify before an investi- gation under Article 32 or before a deposition officer are new additions. These offenses are eonsi.dered sufficiently prejudircial to goold o~der an,d
AGO 20081A
Pam 27-2
discipline to require listing in the table. It is also felt that the listing will prevent possible confusion in this regard. It was also noted that Article 47 specifically includes wrongful refusal to testify at the taking of a deposi- tion.

Art. 134 Sentinel or lookout, offenses against. Assaults upon sentinels or look- outs have been moved under Article 128 offenses. See the discussion of changes in the table as to Article 128, supra.
Art. 134 Transporting, unlawfully, a vehicle or aircraft in interstate or for- eign commerce. This new punishment prescribes a punishment for a viola- tion of the Dyer Act, 18 U.S.C. 8 2312 (1964) which also provides for a five year period of confinement. See United States v. McCarthy, 4 USCMA 385,15 CMR 385 (1954).
Art. 134 Weapon, concealed, carrying. The maximum punishment for this of- fense now authorizes a bad-conduct discharge, confinement for one year, and total forfeitures instead of confinement for three months and partial forfeitures for a like period as authorized in the 1951 Manual. The former maximum punishment authorized for this offense was considered inade- quate when the serious nature of the offense was considered. See D. C. Code $5 22-3204, 3215 (1961) which authorize imprisonment for not more than one year or a fine of $1,000, or both for this offense.
Wrongful cohabitation. This is a new addition to the table. See United States v. Melville, 8 USCMA 597, 25 CMR 101 (1958) ; United States v. Leach, 7 USCMA 388,22 CMR 178 (1956).

Section B, paragnaph 127c PERMISSIBLE ADDITIONAL PUNISHMENTS
The first paragraph, containing the provisions of Exec. Order No. 10565, 19 Fed. Reg. 6299 (1954), is a new addition to this section. The words “adjudged by a court” were inserted in the first sentence of this paragraph to clearly indicate that the pertinent date is the date the previous conviction was adjudged rather than the date appellate review is completed. Any other approach is impractical because completion of ap- pellate review often takes more than one year.
The second paragraph contains material formerly contained in the first paragraph. However, the portion of this paragraph, which pre-viously provided that no forfeiture would be imposed for any period in excess of the period of confinement adjudged as a result of additional punishment authorized due to two or more previous convictions was de- leted. The reasons for this deletion are the same as those given in the second paragraph of the discussion of changes in 126a, supra. Addition- ally, there appeared to be no good reason for the limitation, particularly since it was not applicable to additional punishments authorized by Exec. Order No. 10565, supra.
It should be noted that language was added to the first sentence of the second paragraph which expressly require that the previous convic- tions authorizing the added punishment be adjudged within the three year period stated in the sentence. A 3 year requirement was inherent in the 1951 Manual when the provision was read in conjunction with the pre- vious conviction rules as then stated in 75b(2). However, it was necessary to add this language in view of the changes in 75b(2) which broadened the scope of admissible previous convictions. See the first paragraph of the discussion of the changes in paragraph 75b(2) of chapter XIII, supra.

AGO 20081A

Pam 27-2
It was felt that a 3 year requirement for the added punishment was sufficiently severe, and the 6 year rule now provided in 753(2) was therefore not adopted here. Here, as in the first paragraph, the pertinent date is the date the previous conviction was adjudged by a court-martial.
The material relating to fines was revised to make a fine a truly additional punishment. When a fine is an additional punishment is now provided in the fourth paragraph. For a detailed discussion concerning this change, see the discussion of the changes in 126h(3), supra.
AGO 20081A

CHAPTER 26
NON JUDICIAL PUNISHMENT

Paragraph
General. This chapter was previously amended by Exec. Order No. 11081,28 Fed. Reg. 945 (1963). The comments that follow are addressed to the changes in this chapter as so amended, and they do not cover the
changes that were made by the amendment.
Forfeiture of pay. In the fourth sentence, “whether or not9′ was substituted for “unsuspended” to conform to the procedure relative to courts-martial cases.
Detention of pay. In the second sentence, “from the date the punish- ment is imposed” was inserted after “one year” so that the “one year” would be a time certain. In the sixth sentence, “whether or not sus-pended” was substituted for “unsuspended” to conform to the procedure relative to courts-martial cases.
Right to demand trial. The fact that the accused may also refuse trial by summary court-martial was incorporated in this paragraph for com- pleteness.
Procedure for Navy, Marine Corps, and Coast Guard. The last sent- ence of the last paragraph read as follows: “All such letters of censure addressed to an officer or warrant officer shall be in the form prescribed by pertinent regulations.” This sentence was deleted to prevent a require- ment of regulations.
AGO 20081A

Pam 27-2
CHAPTER 27
RULES OF EVIDENCE

Paragraph
137 General. In the first paragraph, it is stated that the summary court- martial will have the same discretionary power as the MJ concerning the reception of evidence. This is done because the summary court-martial officer will not again be mentioned in the chapter on evidence and refer- ence thereafter will be made only to the role of the MJ, the president of a special court-martial without an MJ and the members of the courts-mar- tial. The terms to be used in signifying these various responsibilities are set forth in paragraph 57a of the Manual. Obviously, the word “court” was too loosely used in the former Manual, and in this revision the word “court” will be used only in its generic sense.
In the second paragraph, the material relating to relaxation of the rules of evidence in connection with interlocutory matters relating to the “propriety of proceeding with the trial” was revised as being too broadly stated in the former Manual. For example, insanity at the time of trial affects the propriety of proceeding with the trial and so do a number of other motions raising defenses and objections, and certainly a relaxation of the ordinary evidentiary rules would be inappropriate with respect to a number of these matters. See paragraph 122c of the Manual. The para- graph was revised with these principles in mind.
The third paragraph is new and the reason for its addition is ob- vious. See, for example, Agreement to Supplement the Agreement be- tween the Parties to the North Atlantic Treaty regarding the Status of their Forces with respect to Foreign Forces stationed in the Federal Republic of Germany, 3 Aug 1959, 119631 14 U.S.T. 531, T.I.A.S. No. 5351, Art. 39.
In the fourth paragraph, the distinction between “material” and “rel- evant” evidence found in the third paragraph of 137 in the former Man- ual was dropped. This distinction was confusing and served no useful purpose. The words are consistently used interchangeably and any sup- posed distinction is merely academic. See 1Wharton, Criminal Evidence, 8 148, n. 1 (12th ed. 1955). The last sentence of the third paragraph of 137 in the former Manual was deleted, since it has no place in the present practice of drawing a sharp distinction between the trial on the merits and presentencing matters.
The last paragraph deletes the sentence which indicated that the limitation of merely cumulative testimony had special application to char- acter witnesses. On the contrary, it has a general application.
Presumptions and permissible inferences. This subparagraph was
entirely rewritten. In the first place, the new subparagraph (1) pre-sumptions are clearly distinguished from inferences. Presumptions are defined as being solely procedural rules which do not themselves supply evidence of the matter presumed. See Bray v. United States, 306 F. 2d 743

AGO 20081A
Pam 27-2
Paragraph
D,.C. Cir. 1962); United States v. Biesak, 3 USC’MA 714, 14 CMR 132
(1954) ;9 Wigmore, Evidence, 5 2490 et seq. (3d ed. 1940) *. The presump-
tion of innocence has generally been held as not supplying evidence of
innocence (see Wigmore, 5 2511), and the presumption of sanity does not
supply evidence of sanity (see Biesak, supra). As in the former Manual, it
is stated that the presumption of sanity is not overcome until a reasonable
doubt of sanity is raised by the evidence. This does not change the prosecu-
tion’s burden of proof, but is merely a recognition of the procedural- fact
that if, after considering all the evidence in the case, a reasonable doubt of
sanity is not raised in the minds of the finders of fact they would be
%.heoretically obliged to find the accused to be sane, the policy behind the
presumption being to require adherence to applicable legal definitions of
insanity and to counteract any tendency to regard the abnormality of crime
as being in itself “insanity.” McDonald v. United States, 312 F. 2d 847, 850

(D.C. Cir. 1962); United States v. WalCers, USCMA 732, 14 CMR 150 (1954) ; United States v. Johnson, 3 USCMA 725, 731, 14 CMR 143, 149 (1954) ;United States v. Biesak, mpra.
In the new subparagraph (2), inferences commonly encountered in criminal trials are plainly labeled as being permissible “inferences” and not “presumptions.” United States v. Gainey, 380 U.S. 63 (1965) ;Bray v. United States, supra; United States v. Dipietrantonio, 16 USCMA 386, 37 CMR 6 (1966).
In the examples of common inferences, the first example concerning the inference of sanity was added to distinguish the inference from the presumption of sanity. United States v. Biesak, supra. The fourth exam- ple (the third in the former Manual), insofar as it relates to the inference of earlier existence of a condition, was reworded in accordance with , United States v. Consolidated Laundries Corporation, 291 F. 2d 563 (2d Cir. 1961). Although the example concerning the inferences resulting from possession of recently stolen property has not been expanded be- cause all permissible inferences cannot be included in a text of this type, possession by an accomplice of the accused will support the inference as well as possession by the accused himself. Weisman v. United States, 1F. 2d 696 (8th Cir. 1924) ; State v. Stutches, 163 Iowa 4, 144 N.W. 597 (1913) ;see also Agobian u. United States, 323 F. 2d 693 (9th Cir. 1963), cert. denied, 375 U.S. 985 (1964) (joint possession of drugs). Matters relating to the “exclusiveness” and the “consciousness” of the possession, often referred to in the earlier cases, really go to the weight and not necessarily to the existence of the inference. Rugendorf v. United States, 376 U.S. 528 (1964). See also United States v. DeSisto, 329 F. 2d 929, 935 (2d Cir. 1964), cert. denied, 377 U.S. 979 (1964). Also, it should be recognized that recent possession will support an inference of receiving and like offenses, and if an offense of this kind is charged no conflicting inference of larceny is to be considered as arising from the mere fact of possession. Rugendorf v. United States, supra. The words “refuses or fails” were substituted for the words “does not or cannot” in the last example (the next to the last in the former Manual). United States v. Lyons, 14 USCMA 67, 33 CMR 279 (1963) ; United States v. Crowell, 9 USCMA 43, 25 CMR 305 (1958). The last example in the former Manual concerning “bad check cases” was rescinded by Exec. Order No. 11009, 27 Fed. Reg. 2585 (1962).
* Hereafter cited as Wigmore, 5 . All references are to the 3d edition with the exception of references to 8s 2175-2396, which are to the McNaughton Revision (1961).
AGO 20081A

Pam 27-2

Paragraph The last paragraph of (2) concerning conflicting permissible infer- en&% was adopted to prlovide a sensible rule for ‘dealing with so-aalled “conflicting presumptions” when these “presumptions” are in reality merely permissible inferences. No such rule is given for presumptions themselves, in the strict sense in which they are used in this revision, for as true presumptions merely regulate procedure such a rule would be inapplicable. The rule adopted is, generally, that found in Rule 15, Uni- form Rules of Evidence, after deleting therefrom the confusion between “presumptions” and “inferences” inherent in Rule 15 and in Rule 14. Certainly, in criminal cases today ordinary common inferences, and prob- ably ordinary factually based “statutory presumptions,” should be re-garded as nothing more than permissible inferences and should not be given illogical effect based on supposed matters of public policy existing apart from the circumstances supporting the inferences. See United States v. Romano, 382 U.S. 136 (1965) ; United States v. Gainey, supra; United States v. Dipietrantonio, supra. And this will hold true also with respect to determining the relative effect of conflicting permissible infer- ences. The rule concerning these inferences set forth in this revision is in accordance with what the Court of Military Appeals actually held in United States v. Patrick, 2 USCMA 189,7 CMR 65 (1953).
Direct and circumstantial evidence. The principal change made ir this subparagraph is the deletion of the former last sentence of the sub- paragraph which cross referenced 74a(3) as to weighing circumstantial evidence. This deletion was made because paragraph 74a(3) now makes no distinction between the weight of circumstantial and other forms of evidence.
Read evidence. A cross reference to paragraph 54d of the Manual was added.
Testimonial knowledge. The second paragraph is a new addition to this subparagraph. It repeats the last sentence of the first paragraph of 138e. Also, the last sentence of the last paragraph was added to cover testimony as to a person’s age and date of birth by witnesses other than

the person in question. See generally, Wigmore, $ 667.
Opinion testimony. The first paargraph was rephrased principally to add a cross reference concerning opinion evidence as to habit or usage. It is also indicated that what is really involved in these situations is a collective “inference” rather than merely an “impression.” Wigmore, §§ 1924,1926.
The subject matter formerly in the third paragraph now appears in the third and fourth paragraphs. However, the third paragraph was re- vised to adopt the more modern rule concerning expert testimony which is really based on a joint or common effort calling for a correlation of the work of a number of experts, not all of whom necessarily have the same expertise. This is often found, for example, in the testimony of pyschiatr- ists who may have based their opinion in part on reports obtained from psychologists, social workers, and others working with expert knowledge in the general field. There is no reason why an expert opinion cannot be based on such a collective endeavor. The opposite side has ample oppor- tunity to develop all of the facts by cross-examination of the expert and, if necessary, by calling as witnesses those who have worked with him. This rule may be found applied in Alexander v. United States, 318 F. 2d

AGO 20081A
Pam 27-2 Paragraph

274 (D.C. Cir. 1963)) and Jenkins v. United States, 307 F. 2d 637
(D.C. Cir. 1962). It has also been adopted, in effect, by the Court of Military Appeals. See United States v. Walker, 12 USCMA 658, 31 CMR 244 (1962); United States v. Heilman, 12 USCMA 648, 31 CMR 234 (1962). From the standpoint of admissibility, the proponent of the expert testimony need not show the details of the basis of the expert’s opinion (Rule 58, Uniform Rules of Evidence; Wigmore, 5 686)) although trial tactics will, of course, often make it advisable for him to do so.
The next to last sentence of the fourth paragraph concerning hypo- thetical questions asked on cross-examination is an obvious exception to the ordinary hypothetical question rule. See ACM 5745, Goodman, 7 CMR 660 (1952) ;qnd authorities there cited.
The next to the last paragraph is new and expresses the rule found in Riley v. Pinkus, 338 U.S. 269 (1949). See also Dolcin Corporation v. Federal Trade Commission, 219 F. 2d 742 (D.C. Cir. 1954)) cert. denied, 348 U.S. 981 (1955), and Stottlemire v. Cawood, 215 F. Supp. 266 (D.D.C. 1963).
Proof of character. This subparagraph has not been materially re-vised. However, the cross reference to 146b is explained in a new last paragraph.
Character of the accused. This subparagraph was considerably re-vised. In the first paragraph, the basic rule concerning the prohibition against raising an inference of guilt from proof of the accused’s bad character is more clearly stated. See Wigmore, $8 57, 58. In the second paragraph, it is pointed out that authenticated copies of efficiency or fitness reports of the accused are admissible on the issue of his good character. United States v. Barnhill, 13 USCMA 647, 33 CMR 179 (1963). The remainder of the paragraph has been revised in the interest of clar- ity.
The third paragraph was inserted to indicate that the prosecution’s
rebpttal is bound only by the general scope of the character evidence
introduced by the accused and not by the particular method the accused
has used in presenting his character evidence.

The next to the last paragraph is also new and was inserted to point
out that rebutting evidence of good character normally may not extend to
evidence of other specific offenses or acts of misconduct of the accused.
See United States v. Haimson, 5 USCMA 208, 17 CMR 208 (1954). How-
ever, if the defense presents evidence that the accused had not committed
other specific acts of misconduct, then it opens the door and the prosecu-
tion may rebut the defense evidence by proof of specific acts, and that is
the reason for this exception to the rule as stated in the revision. United
States v. Kindler, 14 USCMA 394, 34 CMR 174 (1964) ; United States v.
Brown, 6 USCMA 237, 19 CMR 363 (1955). Evidence of other specific
acts of the accused may also rebut evidence of his good character, of
course, if the evidence of specific acts is admissible under 138g. United
States v. Haimson, supra. The prohibition against showing other specific
acts of the accused in rebuttal of his evidence of good character will not
prohibit any incidental showing of specific acts of the accused which may
occur under the ordinary rules of cross-examination in cross-examining
character witnesses. See Michelson v. United States, 335 U.S. 469 (1948).

AGO 20081A

Pam 27-2

Paragraph However, as pointed out by the Supreme Court in the Michelson case, this is a very complicated matter, and the space limitations of the Manual will prevent ,a detailed discussion of it. It should be noted, too, that the Michel- son case deals only with cross-examination as to reputation evidence and does not indicate what the rules might be with respect to opinion evidence of character. The general rules pertaining to cross-examination set forth in paragraph 149b of the Manual will have to be resorted to in this respect.
The last paragraph was revised in accordance with the revision of paragraph 153b (2) (a).
Character of persons other than the accused. This subparagraph was revised to indicate in the first sentence of the first paragraph that charac- ter evidence concerning persons other than the accused is admissible if it is relevant. See ACM S-11208, Allen, 20 CMR 676 (1955). An example of the operation of an exclusionary rule in this connection is given in the new second paragraph. See 1Wharton, Criminal Evidence, 5 230 (12th ed. 1955).
In the next to last sentence of the second paragraph it is indicated that specific acts of violence of the victim are admissible in the stated circumstances as well as opinion or reputation evidence of violent charac- ter. United States v. Desroe, 6 USCMA 681,21 CMR 3 (1956).
Evidence of other offenses or acts of misconduct of the accused. Several new examples and groups of examples were added to this subpar- agraph-all being merely instances of the general principle. As to the third group of examples, the general principle was revised to indicate that other offenses are admissible when they tend to prove knowledge or guilty intent when in issue. The word “element” was deleted since in some offenses these may not be specifically designated as being elements but, nevertheless, may be requirements under the circumstances. See the dis- cussion of 154a(l), infra. The first example in the third group, that dealing with receiving stolen goods, was changed to indicate that there need not have been “several” previous occasions when the “similar cir-cumstance” test is used. Wigmore, 5 324. The example concerning coun- terfeiting was deleted as being of doubtful validity. See Wigmore, 5 310(2). The single example in the fourth group was taken from United States v. Harris, 6 USCMA 736, 21 CMR 58 (1956). In the fifth group of examples (the fourth in the former Manual), the first example was re- vised to state a more common situation. The sixth group of examples was revised to add rebuttal of entrapment as well as rebuttal of accident or mistake as a reason for admitting evidence of other offenses. An entrap- ment example is given. See Sherman v. United States, 356 U.S. 369 (1958) ;Whiting v. United States, 296 F. 2d 512 (1st Cir. 1961) ;Neil1 v. United States, 225 F. 2d 174 (8th. Cir. 1955) ;Carlton v. United States, 198 F. 2d 795 (9th Cir. 1952). Also, the first example in this group was revised to be more explicit. See Wigmore, 5 363. A seventh basis for receiving evidence of other offenses or acts of misconduct of the accused was added to indicate that evidence of this kind is admissible when it tends to rebut any issue raised by the defense, with the exception men- tioned in the text, and a rebuttal of self-defense example has been given which was taken from United States v. Harris, supra. See also United States v. Hog, 12 USCMA 554, 31 CMR 140 (1961). Accordingly, the

AGO 20081A
Pam 27-2

Paragraph Reilly, 317 F. 2d 239 (4th Cir. 1963), and in Consolidated Electric Coop- erative v. Panhandle Eastern Pipeline Company, 189 I?. 2d 777, 783 (8th Cir. 1951), and cases there cited. The proposal in Rule 63(1) of the Uniform Rules and the Comment thereto that consistent statements be considered per se an exception to the hearsay rule also has not been adopted. See 75 A.L.R. 2d 922.
Illustrations. In the second illustration, a more apt example is given of an out-of-court statement which is offered merely to prove that the statement was made and not to prove the truth thereof. The former example dealt largely with matters of mitigation, whereas the new one deals with the merits. A new example-the next to the last one-was added to provide an example of the operation of the last sentence of the statement of the hearsay rule in the present subparagraph 139a. This example indicates how dangerous it would be in criminal cases to adopt a rule allowing repudiated or unadopted inconsistent statements to be re-ceived as substantive evidence, regardless of their nature.
Confessions and admissions. Definitions. Subparagraph 140a in gen- eral was almost completely revised in the light of the many changes in the law of confessions and admissions which have occurred since the 1951 Manual was written. In this Manual, 140a was subdivided for better indexing, referencing, and understanding. In 140a(l) it is pointed out that a statement which proves to be self-incriminating is an admission even if it was intended by its maker to be exculpatory. ‘See Miranda v. Arizona, 384 U.S. 436,477 (1966).
Voluntariness. The first pamgmph omit,s the statement that there are no “hard and fast rules” for determining the “voluntariness” of a confes- sion or admission, since rules of this nature are now provided. The second paragraph contains several changes in the instances of coercion and un- lawful acts which can cause a statement to be involuntary. In the first instance, it is no longer indicated that questioning accompanied by depri- vation of the necessities of life need also be “prolonged” (see Miranda, supra), and the fifth instance no longer requires that a threat or promise be “substantial” to cause a statement to be involuntary in a proper case (United States v. Rogers, 14 USCMA 570, 34 CMR 350 (1964) ). The last two instances are a result of Article 31(b) of the Code and Miranda, supra, which will be subsequently discussed in this connection. It should be mentioned here, however, that statements obtained in violation of the warning requirements of Article 31 (b) or other Federal warning require- ments are implied or legally assumed to be “involuntary,” the decision in Johnson v. New Jersey, 384 U.S. 719 (1966), not to apply the Miranda decision retrospectively merely pointing out (at 730) that pre-Miranda statements could be attacked on the ground of “substantive” involuntari-ness.
In the first sentence of the third paragraph, Article 31(b) is sepa- rately discussed. See generally United St’ates v. Reynolds, 16 USCMA 403, 37 CMR 23 (1966) ;United States v. Beck, 15 USCMA 333, 35 CMR 305 (1965); United States v. Elliott, 15 USCMA 181, 35 CMR 153 (1964); United States v. King, 14 USCMA 227, 34 CMR 7 (1963) (still of import- ance with respect to foreign interrogations under similar circumstances) ; United States v. Nitschke, 12 USCMA 489, 31 CMR 75 (1961) ; United States v. Davis, 8 USCMA 196, 24 CMR 6 (1957) ; United States v. Grisham, 4 USCMA 694, 16 CMR 268 (1954). The term “investigation” is

AGO 20081A

Paragraph signed in connection with the interrogation and, since they are admissions and there is no longer any distinction between confessions and admis- sions, they, too, would have to be affirmatively shown to be voluntary.
The eighth paragraph is a restatement of similar material previously appearing in the Manual, but a cross reference to paragraph 57g(2) has been added to indicate that military judges should conduct their prelimi- nary inquiries into these matters out of the presence of the members of the court.
The ninth paragraph is a statement of those principles applying to rulings on the admissibility and consideration of confessions and admis- sions. The objections of the Court of Military Appeals to the language in the former Manual that the law officer’s ruling “is not conclusive” of voluntariness (see United States v. Cotton, 13 USCMA 176, 32 CMR 176 (1962)) have been recognized by stating that the ruling “does not estab- lish” voluntariness. The second sentence points out that the ruling of the military judge must be based on an interlocutory finding that the state- ment was voluntary to indicate the fact that in the military the “Massa- chusetts” rule is followed and not the “New York” rule which was con- demned by the Supreme Court in Jaclcson v. Denno, 378 U.S. 368 (1964). See also Sims v. Georgia, 385 U.S. 538 (1967). The rest of the paragraph sets forth the rules pertaining to instructions when evidence raising an issue as to the voluntariness of the statement has been introduced in open session. See United States v. Williams, 13 USCMA 208, 32 CMR 208 (1962) ; United States v. Gorko, 12 USCMA 624, 31 CMR 210 (1962); United States v. Erb, 12 USCMA 524, 31 CMR 110 (1961) ; United States v,.Acfalle, 12 USCMA 465, 31 CMR 51 (1961); United States v. Rice, 11US,CMA 524, 29 CMR 340 (1960); United States v. Jones, 7 USMCA 623, 23 CMR 87 (1957).
Purported confession or admission of the accused claimed not to have been made by him.This subparagraph contains rules concerning confes- sions and admissions which are claimed by the accused not to have been made by him at all, as distinguished from those which he claims to be involuntary. This distinction seems not to have been properly noticed in military law (see United States v. Miller, 14 USCMA 412, 34 CMR 192 (1964)) but has been applied in the Federal courts. See Obery v. United States, 217 F. 2d 860 (D.C. Cir. 1954), cert. denied, 349 U.S.923 (1955) ; United States v. Bridges, 133 F. Supp. 638 (N.D. Cal. 1955). See also 2 Wharton, Criminal Evidence, 8 355 (12th ed. 1955).
Admissions by silence. This subparagraph is a revision for the pur- pose of clarification of the similar material pertaining to tacit admissions appearing in the former Manual. The new material is a better exposition of the rationale behind the rule. See United States v. Armstrong, 4 USCMA 248, 15 CMR 248 (1954). The matter concerning corroboration appearing here in the former Manual was omitted since it is obviously covered by the ordinary rules of corroboration stated in 140a(5). As to the last sentence in the subparagraph, see United States v. Jones, 16 USCMA 22,36 CMR 178 (1966).
Corroboration of confessions and admissions. This subparagraph con- tains the new rule pertaining to corroboration of confessions and admis- sions adopted by the Supreme Court in Opper v. United States, 348 U.S. 84 (1954), and Smith v. United States, 348 U.S. 147 (1954). The Opper case is authority for the proposition that the corroborating evidence need
AGO 20081A

Paragraph 140a(6) Miscellaneous. As to the provision in the first paragraph of this subparagraph that a confession or admission, as such, is admissible only against the accused, see United States v. Harvey, 8 USCMA 538, 25 CMR
42 (1957). Once the prosecution has introduced a confession or admission, however, the defense may show the whole of the statement, which may consist of a connected series of statements, and this rule is contained in
the second paragraph. See also the discussion of the last paragraph of 142d.
The next to the last paragraph of this subparagraph follows Miranda

v. Arizona, 384 U.S. 436, 476 (1966) and United States v. Price, 7 USCMA 590,23 CMR 54 (1957).
Acts and statements of conspirators and accomplices. In the first sentence of the first paragraph, it is mentioned that statements made by conspirators are admissible against those who became parties to the con- spiracy after the statements were made, as well as those who were parties at the time the statements were made. United States v. Mesarosh, 223 F. 2d 449 (3d Cir. 1955), and cases there cited, revJd on other grounds, 352
U.S.
1 (1956). In the last sentence of the first paragraph, it has been pointed out that acts or conduct of the conspirators are admissible to show the existence of the conspiracy, even though the act or conduct occurred after the conspiracy had ended. Lutwak v. United States, 344

U.S.
604 (1953) ; United States v. Salisbury, 14 USCMA 171, 33 CMR 383 (1963).

The fourth paragraph is a statement of the law pertaining to the admissibility of statements made by coconspirators after the conspiracy has ended. This has been taken from Grunewald v. United States, 353
U.S. 391 (1957). See also United States v. Beverly, 14 USCMA 468, 34 CMR 248 (1964). The reason for the requirement that the subsidiary agreement relating to concealment of the conspiracy or other avoidance of penal consequences thereof must be shown to be an express agreement is that the existence of an agreement of this nature as part of the agreement constituting the conspiracy cannot pe inferred from acts of concealment or avoidance of apprehension committed by the conspirators.
The fifth paragraph conforms the Manual for Courts-Martial to the decisions of the Supreme Court in Bruton v. United States, 391 U.S. 123 (1968) and Roberts v. Russell, 392 U.S. 293 (1968) which concerned the admissibility of statements of one codefendant against another codefen- dant when the former is not subject to cross-examination by the latter.
Statements made through interpreters. This material was generally revised for the purpose of clarity and explanation. In the list of excep- tions in the second sentence of the first paragraph, it has been indicated that the interpreter need only be the agent of the person against whom the statement is to be used–or his accomplice-and need not be the agent of the person who made the statement, as indicated in the former Manual. See United States v. Day, 2 USCMk 416, 9 CMR 46 (1953) ;Wigmore, 5 1810(2). However, if evidence of a translation of a statement is admis- sible only on the ground that the translation was made by an agent of a witness whose credibility proof of the statement would tend to impeach, that evidence cannot be considered ‘for any purpose other than impeach- ment, even when the statement itself would be admissible for a purpose other than impeachment as an exception to the hearsay rule or otherwise.
AGO 20081A
Pam 27-2

Paragraph This is because the agency theory operates only adversely to the principal, in this case the witness. The last three sentences of the first paragraph were added to draw attention to the fact that the paragraph deals only with methods of proving statements made through interpreters and that the admissibility of the statements will be governed by other rules of evidence.
The second sentence of the second paragraph in the 1951 Manual provided-
If given at another trial, testimony through an interpreter may be proved by the record of the trial or by other evidence of the interpretation only when such evidence is admissible under the above-mentioned agency exception to the general rule or when, in accordance with the provisions of 145b, the testimony is competent as former testimony and the interpreter, as well as the witness at the former trial, is not reasonably available as a witness.
The third sentence of the present second paragraph changes the rule and now permits proof of the testimony of a witness by the record of trial or hearing or by other ‘evidence by showing only that the testimony of the witness and not also the interpretation is competent as former testimony. This change was made because it was considered the practical thing to do. At the former trial or hearing, the accused will have been afforded the opportunity to challenge the interpreter, and the transcript of the transla- tion will usually be more reliable than the recollection of the interpreter. Also, the same is permitted in this same paragraph in the case of deposi- tions and testimony before a court of inquiry. There is no practical reason for a different rule as to the former testimony situation even though Wigmore, 5 1810(1), is authority to the contrary. Under general princi- ples applying to the use of former testimony, of course, a failure to object on the ground that it does not appear that the witness interpreted is unavailable may be regarded as a waiver of that objection. See 145b.
The last paragraph points out that since an interpreter is actually a witness he is subject to the usual tests of credibility and can be contradic- ted by the testimony of counter-interpreters. See United States v. Rayas, 6 USCMA 479,20 CMR 195 (1955).
Dying declarations. In the first sentence of the first paragraph, the rule was extended to make dying declarations admissible in trials for any offense resulting in the death of the alleged victim. This extension should avoid ridiculous results with respect to murder-rape cases, for example, and lesser offenses included in homicide charges. See Wigmore, Q 1432, and Rule 63(5), Uniform Rules of Evidence, although these would go too far in extending this rule. The first paragraph also has been generally rewritten to be in accordance with Shepard v. United States, 290 U.S. 96 (1933). See also Wigmore, Q 1442.
In the second paragraph, it is stated that evidence of the opportunity of the d~eclarant to observe may be supplied by assertilons in the declara- tion itself, for unlike spontaneous exclamations the “truth test” in dying declarations lies in the victim’s personal, dying condition, not in extra- nzous events, and all his assertions concerning the circumstances of the act are admissible. See Wigmore, $5 1434, 1445(2). It has also been indicated in the second paragraph that the declaration may be in the form of a conclusion if it is not merely an expression of suspicion or conjecture. Shepaladv. United States, supra; United States v. DeCarlo, 1USCMA 91, 1CMR 90 (1951).
AGO 20081A
Pam 27-2

Paragraph
The last paragraph contains new matter concerning the weight and impeachment of dying declarations. See Carver v. United States, 164 U.S. 694 (1897) ;Wigmore, 8 1446. For the rule concerning the handling of
written dying declarations, see United States v. Jakaitis, 10 USCMA 41, 27 CMR 115 (1958).
Spontaneous exclamations. In the second paragraph, the rule requir- ing independent evidence of the startling event is included. See UrLited States v. Gaskin, 12 USCMA 419, 31 CMR 5 (1961) ; United States v. Anderson, 10 USCMA 200, 27 CMR 274 (1959) ;United States v. Mounts, 1 USCMA 114, 2 CMR 20 (1952). It is also stated that there must be independent evidence of the opportunity of the declarant to observe the startling event. Potter v. Baker, 162 Ohio St. 488, 124 N.E. 2d 140 (1955). This requirement is inherent in the very nature of this exception to the hearsay rule, since it is the observation of the startling event which supplies the shock or surprise which is the “truth test” with respect to this exception. It is further pointed out in the second paragraph that the exclamation, as in the case of a dying declaration, may be in the form of a conclusion if it is not merely an expression of suspicion or conjecture. The rationale of Shepard v. United States, supra, in this connection should apply here also.
In the next to the last paragraph, it is stated that the fact that the utter- ance was made in response to questioning does not necessarily indicate that it is not admissible as a spontaneous exclamation, but this fact should be considered in determining whether the utterance was impulsive and instinc- tive rather than the result of deliberation or design. Beausoliel v. United States, 107 F. 2d 292 (D.C. Cir. 1939). The last sentence in this paragraph is based on CM 351606, Riggins, 8 CMR 496,508-509 (1952).
As in the drafting of the 1951 Manual (see Legal and Legislative Basis, Manual yor Courts-Martial, United States, 1951, 219), the “observ- er’s description exception” to the hearsay rule, now found in Rule 63(4) (a) of the Uniform Rules of Evidence, was not adopted, since there would seem to be insufficient justification for its use, particularly in crimi- nal cases. For the same reason, the “exception” found in Rule 63(4) (c) of the Uniform Rules, which is based merely on the circumstance of unavail- ability, was not adopted. See Pointer v. Texas, 380 U.S. 400 (1965).
Fresh complaint and lack of fresh complaint. The Court of Military Appeals consistently pointed out that the rule concerning evidence of fresh complaint, as stated in the former Manual, was broader than the rule applying in civilian jurisdictions. United States v. Goodman, 13 USCMA 663, 33 CMR 195 (1963); United States v. Annal, 13 USCMA 427, 32 CMR 427 (1963) ; United States v. Bennington, 12 USCMA 565, 31 CMR 151 (1951) ; Urtited States v. Mantooth, 6 USCMA 251, 19 CMR 377 (1955). In this assertion, the Court was certainly correct, and the rule was far too broadly stated. This is not an exception to the hearsay rule but is only a rule of corroboration of the testimony of the alleged victim that the act was done without the victim’s consent, although this corroboration of testimony that the act was done without consent is im- portant with respect to the credibility of the alleged victim of a sexual offense even if lack of consent is not an element of the offense. Being, therefore, a mere rule of corroboration of the alleged victim’s testimony that the act was done without consent, there is no reason whatsoever why fresh complaint should be admissible when there is no such testimony. The
AGO 20081A

Pam 27-2
Paragraph

statement of the fresh complaint rule in the first paragraph has been changed accordingly. The provision in the first sentence that fresh com- plaint is admissible to corroborate victims of either sex is based on the
decision in United States v. Goodman, supra.
In the second paragraph, a rule pertaining to evidence of lack of fresh complaint is included. See United States v.Goodman, supra.
The last paragraph, which gives the definition of sexual offenses, yvas added. See United States v. Annul, supra.
Statements of motive, intent, or state of mind or body. In the third paragraph, it is stated that a disclosure of a person’s motive, intent, or state of mind or body made in another person’s statement is not admissi- ble unless the person whose motive, intent, or state of mind or body is so disclosed has in some manner approved of the statement. This exceptional circumstance was added to take care of the objection to the rule as stated in the former Manual made by the Court of Military Appeals in United States v. Marymont, 11 USCMA 745, 29 CMR 561
(1960). The Marymont case, pertaining to contents of letters from an-other found in the party’s possession, is in reality nothing but an example of the broader exception mentioned above.
The last paragraph contains added matter concerning statements of the accused tending to show consciousness of guilt or consciousness of innocence. United States v. Bradshaw, 15 USCMA 146, 35 CMR 118 (1964) ; United States v. Snook, 12 USCMA 613, 31 CMR 199 (1962); United States v. Kachougian, 7 USCMA 150, 21 CMR 276 (1956) ;Wig-more, § § 293 and 1144. Of course, statements of the accused showing consciousness of guilt must be subject to the limitations pertaining to the admissibility of confessions or admissions. Also, statements of the accused tending to show consciousness of innocence must, as under the rule per- taining to statements of motive, intent, or state of mind or body gener- ally, be made under circumstances not indicative of insincerity. United States v. Harvey, 8 USCMA 538, 25 CMR 42 (1957). Of course, the word “statements” as used in this paragraph also includes conduct. See Wig- more, § 293.
“Lie detector” tests and drug-induced or hypnosis-induced inter-I views. This subparagraph is new. It follows the rulings of the Court of Military Appeals in United States v. Massey, 5 USCMA 514, 18 CMR 138 (1955) and United States v. Bourchier, 5 USCMA 15, 17 CMR 15 (1954). See also Townsend v. Sain, 372 U.S. 293 (1963); Wigmore, 3 998. It should be noted that the rule, as stated, deals only with inadmissibility in I a trail by court-martial and, consequently, the rule does not disturb the result in the Mussey case, supra, which allows consideration by a conven- ing authority of a favorable lie detector test.
Proving contents of a writing. General rule, the best evidence rule. The material appearing in the single paragraph of subparagraph (1) in the former Manual now appears, in altered form, in the first and fourth paragraphs of the new subparagraph (1). This material has been entirely rewritten so that the terms “best evidence rule” and “secondary evidence” will be more clearly defined and the application of the best evidence rule more easily understood. Two substantive changes have been made, how- ever. The phrase “for use as an original or as one of a number of origi- nals” has been added to the sentence excluding “identical” copies from the
AGO 20081A
Pam 27-2

operation of the best evidence rule so that the principle of equal admissi- bility of duplicate originals will be limited to its legitimate application. Ahlstedt v. United States, 315 F. 2d 62 (5th Cir. 1963); Mullican v. United States, 252 F. 2d 398, 401 (5th Cir. 1963) ;CM 413633, Cooper, 36 CMR 594 (1966). In the fourth paragraph, it is pointed out that a waiver of the best evidence rule will not waive authentication of the writing. United States v. Bryson, 3 USCMA 329, 336, 12 CMR 85, 92 (1953).
The second paragraph states the obvious principle that the best evi- dence rule applies to proof of the contents of the particular writing the terms of which are in issue, even though that writing may actually be a “copy.” Wigmore, 8 1235. The third paragraph contains an explanation of the proper scope of the “best evidence rule” in relation to other principles of law governing the admissibility of evidence, and points out that facts existing independently of a writing in which they are recited may be proved by any competent evidence, without regard to the writing. See United States v. Parker, 13 USCMA 579, 33 CMR 111 (1963) ; Wigmore, 5 5 1335, 1336, 2427, 24150.
Exceptions to the best evidence rule. The new subparagraph (a) makes several changes in the former first paragraph of subparagraph (2). Nonproduction of the original has been based on lack of feasibility to produce it. Wigmore, 8 1192. The second sentence, indicating there is no necessity to show a demand for production of an original writing shown to be in the possession of the accused before introducing secondary evi- dence, is based on the decision in United States v. DeBell, 11USCMA 45, 28 CMR 269 (1959). Further, general rules concerning the matter of testimonial “interpretations” and machine “translations” of machine, electronic, and coded writings are included so that modern methods in- creasingly used in the world of business and government will be recog- nized in the law of evidence. See Transport Indemnity Company v. Seib, 132 N.W. 2d 871 (Neb. 1965). This matter will be mentioned throughout the revised paragraphs 143 and 144 and will be discussed subsequently herein (see the discussions of 143a (2) (c) and (e) and 143(d). It should be noted here, however, that the reason for providing for the admissibility of authenticated machine “translations” as well as testimonial interpreta- tions is that with respect to some of the more advanced systems it would be difficult, if not impossible, to interpret the original without the aid of a machine “translator,” which is often part of the general process.
The new subparagraph (b) deletes as being too restrictive the re- quirement formerly found in the second paragraph of 143a(2) that the result of numerous or bulky writings must be ascertainable by “calcula- tion.” Pritchard v. Ligett and Myers Tobacco Co., 295 F. 2d 292 (3d Cir. 1961) ;Wigmore, 8 1230. Also, since examinations and summarizations of the type mentioned in the new subparagraph are frequently group activi- ties and it is reasonable and often desirable to call only one member of the group as a witness, the opposite party having ample opportunity to inquire into the whole matter, the revision takes this problem into consid- eration. See Jenkins v. United States, 307 F. 2d 637 (D.C. Cir. 1962) (adopting a similar approach with respect to medical testimony) ; Wig-more, $ 752a. See also United States v. Walker, 12 USCMA 658, 31 CMR 244 (1962) ; United States v. Heilman, 12 USCMA 648, 31 CMR 234 (1962). The subparagraph also contains the usual provision for waiver applicable to a showing of witness qualification and permits the examina- tion and summarization to be made by mechanical or electronic means.
AGO 20081A
Pam 27-2

Paragraph infor.martion contained in such a writing. This was done in subparagraph 143a(2) (a). Sometimes, of course, written “translations” of automated entries are themselves made as official records or business entries, and these would be admissible on that basis without reference to the best evidence rule. See 144b and c. Also, it is conceivable that a particular written “translation” might, under certain circumstances, come within one of the general exceptions to the best evidence rule permitting the use of copies.
It is also indicated in (c) that handwritten portions may be copies in type except, of course, when the handwriting is to be evidenced by the copy. This is the most commonly ‘encountered exception to the “exact copy” rule.
The new subparagraph (d) restates the old rule, formerly found in the third paragraph of 143a(2), providing for written summaries of official records when it would be detrimental to the public interest to divulge the text or informational source of the record. Although the point seems not well understood, there is nothing unusual in providing for summaries of official records when there is good reason for doing so. See United States v. White, 3 USCMA 666, 14 CMR 84 (1954), and materials there cited. This subparagraph also provides for the admissibility of a written summary of a foreign official record when the foreign jurisdiction will not furnish an exact copy or extract of the record. This rule is based on the custom of some foreign countries to certify only summaries and to refuse to furnish exact copies or extracts. Although the new Rule 44 conditions the admissibility of summaries of foreign official records on reasonable opportunity being given to all parties to investigate the au- thenticity and accuracy of the documents, this condition seems unneces- sary in military procedure, under which, because of the military pretrial practice, such a reasonable opportunity is always given, although (see Banco de Espana v. Federal Reserve Bank of New York, supra) it may actually be impossible to inspect the basic record. The last sentence of the subparagraph states that summaries of official records are inadmissible unless otherwise provided by law, and this is generally recognized as being the law on the subject. United States v. White, supra; Wigmore, $8 1269,2108.
The new subparagraph (e) is a rephrasing of similar material added to paragraph 143a(2) of the 1951 Manual by Exec. Order No. 11009, 27 Fed. Reg. 2585 (1962). This exception to the best evidence rule was approved in United States v. Gladwin, 14 USCMA 428, 34 CMR 208 (1964) The material was rephrased to make use of the same format and approach as was used with respect to copies of official records in 143a(2) (c). Provision is made for the admissibility of certified “transla- tio~s” of machine, electronic, and coded business entries here as well as in the case of official records, and for the same reason. In this regard, the former paragraph 143a(2.) as changed stated that these “translations” could be made, “by machine or an ‘interpreter’.” This was changed to read “by machine or by a person” because it was found that machine transla- tors in some systems are actually called “interpreters.”
The new subparagraph (f) enlarges the scope of the former fourth paragraph of 143a(2) to provide for certificates or statements of finger- print comparison by any custodian of personnel or fingerprint records of the armed forces, or by his deputy or assistant. This change is necessi-

AGO 20081A
Pam 27-2

Paragraph
tated by the increasingly frequent number of organizational changes in
the military departments, and in any event it would seem that if the
custodian has a fingerprint expert on duty with him this should suffice.
Also, the words “by the expert” were added to the first sentence to
emphasize that the identification of the fingerprints must have been made
by the fingerprint expert. See United States v. Taylor, 4 USCMA 232, 15
CMR 232 (1954).

The new subparagraph (g), formerly the fifth paragraph of 143a(2), points out that when the fact to be proved is the absence of an entry in official records any person who searched the records, or who was a quali- fied member of a group which searched the records (see the discussion of 143a(2) (b)), may testify as to the absence of the entry. ACM 5293, Downing, 6 CMR 568 (1952). See also United States v. Grosso, 9 USCMA 579, 26 CMR 359 (1958). That part of the text dealing with certificates of the absence of the entry was rephrased so that aside from matters of authentication its language will be in general accordance with the new Rule 44. Provision is also made for machine searches.
The new subparagraph (h) contains matter added to paragraph 143a(2) of the 1951 Manual by Exec. Order No. 11009, 27 Fed. Reg. 2585 (1962), and approved as to banking entries in United States v. Gladwin, supra. The material was rephrased to use the same format and approach, as far as appropriate, as was used with respect to proof of the nonexist- ence of official records in the preceding subparagraph. Testimony as to the negative result of a search of business entries is admissible notwith- standing objections on the basis of the best evidence rule or of its being hearsay McDonald v. United States, 200 F. 2d 502 (5th Cir. 1953) United States v. Grosso, supra; ACM 7081, McDonough, 12 CMR 883 I (1953) ; Rule 63 (14), Uniform Rules of Evidence (1953). The general rule is, however, that proof of the nonexistence of a business entry, unlike proof of the nonexistence of an official record, may not be made by certificate. ACM 7081, McDonough, supra. This subparagraph recognizes this general rule but provides an exception thereto in the case of public banking entries, since these now have been placed on much the same basis as official records. Machine searches are also provided for in this subpara- graph.
Authentication of writings. General. The first paragraph of 143b(l) was revised to contain a caveat concerning the effect of authentication by failure to object to lack of proof of authenticity which is similar to the comparable caveat now contained in the fourth paragraph of 143a(l) I with respect to the best evidence rule. The reason is obvious-an authenti-cated inadmissible document is merely authenticated, it is still inadmissi- ble. Also, a new sentence was added to this paragraph to explain the effect of certificates used in authenticating writings when these certificates are admissible for this purpose as an exception to the hearsay rule. See Wigmore, 5 2161, 2162, 2168. This matter will be further discussed in connection with 143b (2).
Due to the somewhat confusing state of the law as to what types of copies may and may not be used for proof of radiograms and telegrams (see wigmore, § 1236), and the fact of the widespread use of telegrams and radiograms in the military services, it seemed desirable in the second paragraph of 143b(l) to provide specifically for an exception to the best evidence rule in these cases, as well as to speak of their authentication. In
AGO 20081A
Pam 27-2

Paragraph view of the logical inference of accuracy of copies made in the regular course of business, such an exception seemed justified. See Wigmore, 8 2154.
The third paragraph was rewritten principally to define the qualifi- cation of the lay handwriting witness-that is, the witness who has merely seen another write by hand or has seen handwriting which can reasonably be believed to be the other’s handwriting. The old common law rule was that any person who at any time and under any circumstances has seen another’s handwriting was qualified to give an opinion or conclu- sion as to whether that other was the author of the handwriting in question, regardless of circumstances which would militate against his qualifications in fact to express such an opinion or conclusion. The new rule, by use of the phrase “under circumstances which enable him to form a belief as to the character of a person’s handwriting,” will give the Military Judge or special court-martial President greater discretion and latitude in determining the qualifications of the witness and is in keeping with modern versions of what the law should be in this field. See Wig- more, §§ 694-702.
The fourth paragraph was rephrased in the interest of clarity and accuracy. The fifth paragraph as it appeared in the former Manual was placed in 143c and a new fifth paragraph was inserted to provide specific authorization for the use of unidentified handwriting to test the opinion of handwriting witnesses, both expert and lay. United States v. McFer-ren, 6 USCMA 486, 20 CMR 202 (1955). Although the McFerren case dealt only with the use of such a test in connection with expert handwrit- ing testimony, it would be absurd to prohibit the use of this method of testing in the case of lay handwriting witnesses who obviously are more subject to error in this field than experts.
Authentication of official records. The first paragraph of (a) was generally revised in the interest of clarity of expression and of definition of those terms which are to be used throughout the discussion of authenti- cation of official records. The definition of “authenticating certificate” has been changed to state clearly, although this was inherent in the former Manual definition, that the form of the authenticating certificate is suffi- cient when indicating only that the signature on the attesting certificate is genuine, without vouching for the official position or duties of the signer of the attesting certificate. Both the former and present Rule 44 require in various forms that the authenticating certificate contain an indication as to the official position or duties of the attesting official. However, the report on Italian and American Procedures of International Co-operation in Litigation prepared by the Columbia University School of Law Project
on International Procedure contains the following interesting comment in this regard :
. . . the Italian Government has requested that . . . United States consuls desist from authenticating Italian documents. As a result, according to an American Embassy Circular of October 10, 1961, American consular officers will certify only the genuineness of the signature of the functionary of the Ministry of Foreign Affairs.
Clearly, under present practice, it would be difficult, if not impossible, for the American consul to issue the certification as to genuineness of signature, incumbency, and authority required by rule 44 . . . . However, the proposed revisions of those provisions . . . would eliminate virtually all difficulties. Problems could arise only because American consuls are presently willing to certify merely the genuineness of the signature and not the incumbency of the last certifying Italian official. It would undoubtedly be helpful if the Italian government would relinquish its objection to more extensive certification by the

AGO 20081A
Pam 27-2
Paragraph
United States consul. However, it may well be that elimination of the require-
ment of a certificate of incumbency from the proposed revisions would also be
proper. (Smit, Italian and American Procedures of International Co-operation
in Litigation: A Comparative Analgsis, Columbia University School of Law

Project on International Procedure (New York) ,14-15 (1962).) See also the Advisory Committee’s Note to the new RuIe 44, in which it is intimated that the language of the amendment may provide a solution to the above problem. It does not, however, appear to have that effect. The requirement of certifying to the incumbency of the preceding official in the chain of authentication, whether he is the attesting official or another authenticator, has been deleted throughout these revisions to the Manual not merely because of the difficulties encountered in Italy but because this particular requirement has in fact no legitimate place in the law gener- ally. Once the signature of a purporting attesting or authenticating official is sufficiently shown to be genuine, as when this is done through an admissible authenticating or other certificate in the chain of authentica- tion, his actual incumbency and authority may be inferred. Indeed, as indicated in the first paragraph of 143b(l), an exception to the hearsay rule then becomes available to prove the authenticating facts stated or indicated by him, subject, of course, to rebuttal by evidence which in fact sways the judgment of the decision maker. See Wigmore, $8 2161, 2162, 2168 and cases discussed therein. This is only as it should be, for rarely can the next authenticator in the chain really know in detail the legal or administrative sources of the position and authority of the person whose certificate he is authenticating. If the signature of the purporting attest- ing or authenticating official is properly certified, or otherwise shown, to be genuine, this should be sufficient to dispel, initially at least, any suspi- cion of fraud, misrepresentation, or impersonation. If, however, as stated in the last sentence of the first paragraph of (a), official position is certified, this may be inferred to be also a certification of signature in the ordinary course of official usage, even when signature is not expressly certified. In connection with the above matters, it should be noted that Rule 44 does not attempt to lay down absolute standards, for the rule’s saving clause provides that the rule will not prevent the use of other legally authorized methods of proof. See also Legal and Legislative Basis, Manuals for Courts-Martial, United States, 1951, 225-227.
I The second paragraph of (a) defines a custodian in ,accordance with I the decision of the Court of Military Appeals in United States v. Stone, 13 USCMA 52, 32 CMR 52 (1962), although references to the record being kept “on file” in an “office” are omitted for reasons previously mentioned in the discussion of 143a (2) (c). The paragraph sets forth the inference applicable to a properly authenticated attesting certificate in more detail I than does the former version, and some clarifying information is given as to the theory underlying the general operation of authentication by certif- icate, particularly when there is a chain of authenticating certificates.
The material on military records, subparagraph (b), was rewritten to include the National Guard and military agencies or units of an ally of the United States.
Subparagraph (c), United States records, contains substantially the same material, in a rearranged and slightly enlarged form, as did its former counterpart, but refers to “Commonwealth” rather than “Territo- ries” since the United States no longer has any Territories. “Common- wealth,” of course, now means the Commonwealth of Puerto Rico. See use of term “Commonwealth” in 10 U.S.C. 8 101(3) (1964) and Article 49,
AGO 20081A
Pam 27-2

Paragraph UCMJ, 10 U.S.C. 8 849 (1964). The word “district” is defined (see 28
U.S.C. $8 81-131 (1964)), and the definition of “possession” was adopted as a matter of convenience to avoid enumeration of trust territories and other places administered by the United States (see the enumeration in the new Rule 44 and see United States v. Vierra, 14 USCMA 48, 33 CMR 260 (1963) ). A provision for authenticating the records of former territo- ries is also included. The third method of authenticating United States records (found in the fourth method in the former Manual) was re-phrased to make it clear that only records of the Federal government may be authenticated by an attesting certificate alone, under the authority set forth in this method. It might be noticed that the methods of authentica- tion provided for in this subparagraph will permit cross-servicing-that is, authentication of records of a Commonwealth, possession, political subdivision of either, or the District of Columbia by certain Federal officials under certain circumstances, and vice versa-which would proba- bly not be so under Rule 44, thus obviating the necessity of any inquiry as to whether the authenticating official, if otherwise qualified under these rules, actually derived his authority from the Federal, as distinguished from the other mentioned governmental units, or vice versa. Also, the words “of record” have been omitted when reference is made to courts in this and other subparagraphs, since an inquiry as to whether a particular court occupies the ancient and sometimes mysterious status of being a “court of record” seems irrelevant in this century.
Subparagraph (d), State records, was only slightly revised. As in subparagraph (c), authenticating courts need no longer be “of record” and in this connection it might be mentioned that many State courts customarily authenticate records which have no relation to litigation, such as records of vital statistics (see for example, CM 408697, Griffin, 32 CMR 642 (1963)). Material was added recognizing the frequently used method of authentication by an attesting or authenticating certificate under the seal of a judge or clerk of a court, as distinguished from a seal which purports to be that of the court itself. CM 408697, Griffin, supra. This was also done in the preceding subparagraph (c).
Subparagraph (e), Foreign records, was entireli rewritten so that the third and fourth methods of authentication will, in principle, be in accordance with the new Rule 44. However, for reasons pointed out in the discussion of 143b(2) (a), authenticating or other accompanying certifi- cates need only certify as to genuineness of signature and need not extend to a certification of incumbency of office. In the third and fourth methods, final authentication by United States “foreign service officers,” was re-tained, since it may be necessary or desirable in a particular case to obtain a final authentication in the United States from one of these officers. See, in connection with these revisions, the discussion of the Mole case in the discussion of the eighth group of examples of judicial notice under 147a.
The second paargraph of (e) was revised to give greater latitude to final authentication of copies of foreign official records by military au-thorities. The third paragraph provides for the use of seals, instead of signatures, as links in the chain of authentication of copies of foreign official records as is done in the former Manual. The last paragraph provides for attestation of ‘copies of foreign official records by authorized persons other than custodians, as does the new Rule 44, but in addition sets forth appropriate inferences applying to these attestations.
AGO 20081A
Pam 27-2
Paragraph
It should be noted that the new Rule 44 contains a somewhat impre-
cise provision concerning the admissibility, “for good cause shown” of
attested copies of foreign official records, without the prescribed final
authentication, if all parties have been given a “reasonable opportunity”
to investigate the authenticity and accuracy of the documents. It is as-
sumed that ‘what is intended here is that there may be some form of

waiver or some other form of authentication satisfactory to the court. In this Manual, waiver is specifically provided for in the first paragraph of 143b(2) (a) and other methods of authentication, which should cover most contingencies, are set forth in the second paragraph of 143b (2) (f) .
In any event, any unusual application of Rule 44 would be adopted by the second method of authenticating foreign official records.
The second paragraph of (f) is a restatement of the common law “examined copy” rule. This restatement is based on generally accepted doctrine (United States v. Stone, supra), and “dual testimony7’-one wit-ness testifying to the correctness of the copy and the other as to the authenticity of the original-is permitted in this connection (Wigmore, 5 1280 (3)). The second paragraph also clarifies similar material that ap- peared in the second paragraph of -143b(2) (f) of the 1951 Manual con-cerning direct authentication of attesting or authenticating certificates by testimony or otherwise, and an example is given.
The third paragraph of (f) provides for direct authenkimtilon of an original by a judicially noticeable signature, seal, or symbol, a provision made desirable because of the inclusion of official records in certificate form in the new official record rule. See 144b. Also, admissible fascimiles of these records may be authenticated in this manner. Such a facsimile would be admissible, for example, when it was itself issued as a certificate constituting an official record (the usual motor vehicle operator’s license) or when it is otherwise outside the prohibition of the best evidence rule. See Ahlstedt v. United States, 315 F. 2d 62 (5th Cir. 1963) ; United States
v. Bryson, 3 USCMA 329, 12 CMR 85 (1953) (document not an official record in this case).
The last paragraph of (f) is a revision of the general material found in the same paragraph in the former Manual, with additions obviously I
I

corresponding with new ‘material elsewhere in the new text. As to the I& sentence in the paragraph, see the Advisory Committee’s Note to Subdivi-
sion (a) (2) of the new Rule 44 of the Rules of Civil Procedure.
Authentication of banking entries. This subparagraph is a revisions olf
(

similar material added to the 1951 Manual as subparagraph (3) of 143b by Exec. Order No. 11009, 27 Fed. Reg. 2585 (1962), and approved in United States v. Galdwin, supra. The revision will cause the certificate or statement of the person in charge of the banking entry, or his assistant, to follow the language of the business entry exception to the hearsay rule (144c) and will supply, if the certificate or statement is properly notar- ized, an inference as to his status similar to the inference applying to the signer of a properly authenticated certificate attesting a copy of an official record. The admissibility of an authenticated copy of a banking entry is provided for in 143a(2) (e).
Certain procedural matters relating to documentary evidence. The first paragraph of 143c contains matter appearing in the last paragraph of 143b(l) in the 1951 Manud. The selcond paragraph is new. It states the rule that a writing does not become admissible against a party merely
AGO 20081A

Pam 27-2

Paragraph because he requested production of the writing or inspected it and ex-pressly repudiates the supposed common law rule to the contrary which was never well-founded. Wigmore, § 2125. Definition of writing. This subparagraph, defining the term “writ-ing” as it is used in this chapter, is based on Rule 1(13), Uniform Rules of Evidence (1953). An attempt was made by way of examples to spell out all conceivable situations wherein a recording might constitute a writ- ing. Oficial records. Thi~s subpalagraph was completely revised. The fo’r- mer requirement that the official duty to make the record be one imposed “by law, regulation, or custom” was’ deleted, since that requirement has no legitimate place in the official record exception to the hearsay rule. Oakes v. United States, 174 U.S. 778 (1899) ;Stasiukevich v. Nicolls, 168
F. 2d 474 (1st Cir. 1948) ;E. K. Hardison. Seed Co., v. Jones, 149 F. 2d 252 (6th Cir. 1945) ;Wigmore, 5 1633; Rule 63 (15), Uniform Rules of Evid- ence. See also United States v. Masusock, 1USCMA 32, 34, 1CMR 32, 34 (1951). Certificates given to private persons, whether or not a record of the matters stated in the certificate was officially retained, are now in-cluded in this exception to the hearsay rule if they meet the general r~quirements of the exception. See Wigmore, $5 1632, 1645, 1674; Com- ment, Rule 63(15), Uniform Rules of Evidence (1953). The “prima facie presumptions” found in this subparagraph as it appeared in the 1951 Manual are now more properly stated to be inferences. Wigmore, 5 2534. Indeed, the use of the term “prima facie” has been avoided throughout this Manual as being inexact, confusing, and subject to differing interpre- tations. The sxond inference as it appears in this provision adopts gener- ally the principles set forth in United States v. Moore, 8 USCMA 116, 118, 23 ClMR 340, 342 (1957) and United States v. Masusock, supra. See also Oakes v. United States, supra, and Rule 63 (17), Uniform Rules of Evid- ence. In view of the restated second inference, the third “presumption” found in the former Manual became unnecessary. The official record rule, as now stated, combines, in general, the matters covered in Rules 63(15) and 63 (16) of the Uniform Rules of Evidence. The last paragraph deals with the admissibility of testimonial interpretations of machine, elec-tronic, and coded official records and certain machine and other “transla- tions” thereof.
Business entries. The second paragraph of 144c incorporates the en- tire test of the 1951 amendment to the Federal business entry statute as later amended (28 U.S.C. 5 1732(b) (1964) ), although the word “regula- tion” has been added to the restriction on destruction since record retire- ment is largely governed by regulations in the armed services. See, gener- ally, Beard v. United States, 222 F. 2d 84 (4th Cir. 1955). Of course, when it is shown that an original memorandum or record was not made within the time prescribed in the first paragraph of 144c, it would not be a business entry. Missouri Pacific Railroad Company v. Austin, 292 F. 2d 415 422 (5th Cir. 1961). It follows that a reproduction thereof would not be admissible as a reproduction of a business entry under the second paragraph. Because of the inference stated in the first sentence of the third paragraph, it must be shown that the entry in question was not made within the time prescribed if its exclusion is sought on that ground. The statement in the next to last sentence of the second para- graph that a properly authenticated copy of a reproduction i$ admissible subject to the same conditions as a properly authenticated copy of the original itself is not found in 28 U.S.C. S 1732(b) (1964) but was inserted
AGO 20081A

Paragraph Art. 15(f)) and the prosecution might desire to show it to contradict assertions by the accused or the defense that the accused “never got in trouble” while in the service. See United States v. Mackie, 16 USCMA 14, 36 CMR 170 (1966) (so much of record of nonjudicial punishment as shows fact of proper imposition of correctional custody, but not offense for which it was imposed, admissible in prosecution for breach of restraint while in ~oorrectional custody) ;United States v. Statham, 9 USCMA 200,25 CIMR 462 (1958) ;CM 412523, Webb, 35 CMR 593 (1965).
The sentence formerly comprising the last paragraph of 144d was deleted. ThAt sentence indicated that a news account was not admissible under the official record or business entry exceptions to the hearsay rule to brove an incident. It was deleted because the rule was subject to improper application. For example, a news account is admissible for this purpose when the incident in question was a matter of local interest of such a public nature that it would generally be known throughout the community and had happened so long ago that the testimony of an eyewit- ness would probably be less trustworthy than a contemporary news account of the incident. Dallas County v. Commercial Union Assurance Co., 286 F. 2d 388 (5th Cir. 1961). See also Wigmore, 55 1421, 1422. In order to avoid a lengthy discussion, the sentence was deleted as there is little danger that anyone will conclude in the average case that a news account is admissible to prove an incident.
Maps, photographs, sketches, charts, and fingerprints. The second paragraph of 144e is new. The new paragraph sets forth the rule that charts showing complicated mathematical computations or compilations and their mathematical results are admissible at the discretion of the court. Lloyd v. United States, 226 F. 2d 9 (5th Cir. 1955) ;see also Deschenes v. United States, 224 F. 2d 688 (10th Cir. 1955). These charts should not contain conclusionary captions or statements other than those indicating mathematical results (see the Lloyd case, supra). Charts of this kind should not be used by members of the court in closed session. See Steele v. United States, 222 F. 2d 628 (5th Cir. 1955) ; United States v. Jakaitis, 10 USCMA 41, 27 C,MR 115 (1958) (involving a similar princi- ple applied to depositions).
The third paragraph of 144e contains instructions concerning the use of graphic portrayals which are necessary to allow proper review of the case.
Business, professional, or public lists and directories. The exceptions to the hearsay rule set forth in this new subparagraph are recognized in ACM 4234, O’Connor, 3 CMR 541 (1952) ; Wigmore, $$ 1702-1706; and Rule 63(30), Uniform Rules of Evidence. In the O’Connor case, the Rand McNally Banker’s Directory was held admissible to show the nonexistence of a purported bank upon which the accused had drawn a check. In People
v. Eppinger, 105 Cal. 36, 38 Pac. 538 (1894), a city directory was held admissible to prove that there was no firm of the name alleged, and in State ex rel. Keefe v.McInerney, 63 Wyo. 280, 182 P. 2d 28 (1947), it was held that city directories and telephone directories are admissible to prove that certain persons are residents of the city. A distinction is drawn in the text between business and professional compilations and those in- tended for the public at large. Although the case law ordinarily supplies only a vague delimitation of this distinction, usually discernible only in a

AGO 20081A
145b
(Third un- numbered paragraph)
Pam 27-2
USCMA 561, 566, 16 CMR 135, 140 (1954). Also, it is stated in this paragraph that refusal of a witness to testify is a good ground for receiv- ing his former testimony if it is not inadmissible under some other rule. The word “lawful” has been deleted. “Lawful” refusal to testify is no longer a condition for the admissibility of a former testimony. Simple refusal is enough, assuming that all other requirements have been met. This change conforms military practice to the practice in many civilian jurisdictions. This rule is particularly appropriate in the military where there is no contempt power simply because the witness obdurately but courteously refuses to testify. But see 149a. It is recognized that in United States v. Barcomb, 2 USCMA 92, 6 CMR 92 (1952), the Court of Military Appeals held that depositiond could not be received merely because the deponent refused to testify. This decision was based on the ground that a witness who is present but refuses to testify, at least under the circum- stances in the Barcomb case, “fits none of the excepted circumstances listed in Article 49(d) of the Code.” No such restriction is inherent in the reception of former testimony, nor should it be. When a witness refuses to testify, he is certainly as unavailable, if not more so, than others whose former testimony was accepted under the situations expressed in para- graph 145b of the former Manual. Former testimony is accepted on the ground of refusal to testify in the civilian courts. United States v. Yates, 107 F. Supp. 408 (S.D. Cal. 1952), rev’d on other grounds, 227 F. 2d 844 (9th Cir. 1955) ;Narum v. United States, 151 Ct. C1. 312, 287 F. 2d 897 (1960), cert. denied, 368 U.S. 848 (1961) ; Johnson v. People, 384 P. 2d 454 (Colo. 1963) (see also cases and materials there cited-refusal need not be based on privilege), cert. denied, 376 U.S. 922 (1964) ; Wigmore, $ 1409; Rule 62(7), Uniform Rules of Evidence. The other grounds for admitting former testimony were redrafted so that they are in general accordance with the limitations on similar grounds for the reception of deposition testimony imposed by the Court of Military Appeals in the Mulvey, Miller, and Stringer cases, supra. United States v. Burrow, 16 USCMA 94, 36 CMR 250 (1966). The “more than one hundred miles” ground of admissibility was deleted from the former testimony exception to the hearsay rule. See United States v. Obligation, 17 USCMA 36, 37 CMR 300 (1967). See also reviser’s note to Rule 15(e) of the Federal Rules of Criminal Procedure. With respect to the use of former testimony by the prosecution, the requirement that the accused must have been af- forded an opportunity to be adequately represented by counsel (Pointer v. Texas, 380 U.S. 400 (1965) ; United States v. Vanderpool, supra) was added, although, as stated in the second paragraph, an objection that he was not may be waived by a failure to object on that ground to the introduction of the former testimony (United States v. Vanderpool, supra) .
The last sentence of the first paragraph states that former testimony given at a preliminary judicial hearing, such as an Article 32 investiga- tion, is admissible under the same conditions as testimony given at a former trial: United States v. Burrow, supra; United States v. Eggers, 3 USCMA 191, 11CMR 191 (1953) ;see also Pointer v. Texas, supra (here there was a failure to afford the right of cross-examination through counsel).
This paragraph implements the decision of the U.S. Court of Military Appeals in case of United states v. Bearchild, 38 CMR 396 (1968) which applied the rule of Harrison v. United States 392 U.S. 219 (1968) con-

AGO 20081A

Pam 27-2
P.aragraph
cerning inadmissible pretrail statements and their relation to in court
testimony.

In the first sentence of the fourth paragraph, it is pointed out, as in the former Manual, that no “best” or “preferred” evidence rule applies in proving former testimony. 11 A.L.R. 2d 36; Wigmore, 5 1330; see also Meyers v. United States, 171 F. 2d 800, 812 (D.C. Cir. 1948), cert. denied, 336 U.S. 912 (1949). It is also indicated in this sentence that a witness need only be able to state the substance of all relevant parts of the former testimony. Ruch v. Rock Island, 97 U.S. 693 (1887); 11 A.L.R. 2d 42; Wigmore, § 2099, at 492. Since there is no reason for a greater require- ment when proof of former testimony is in written form, the second sentence indicates that the contrary dicta in the majority opinion in United States v. Norris, 16 USCMA 574, 37 CMR 194 (1967) has not been followed. The last sentence contains the same provision for requiring completeness of presentation as that found in the preceding material on depositions, for as in the case of depositions the defense can sometimes use former testimony when the prosecution cannot. See Fed. R. Crim. P. 15 (e).
As provided for depositions, the fifth paragraph of 145b indicates that former testimony which is in written form is merely read in evidence and is not given to the members of the court for their use in their deliberations.
In the last paragraph, which is the next to the last paragraph in 145b of the former Manual, new material was added to indicate that a state-ment made by an accused at a trial in connection with in inquiry into the providence of his plea of guilty, or in connection with the sentencing proceedings, is not admissible against him on the issue of guilt or innoc- ence in his subsequent trial for the same or any other offense. United States v. Barben, 14 USCMA 198, 33 CMR 410 (1963) ; United States v. Stivers, 12 USCMA 315, 30 CMR 315 (1961). Although the cases cited involve subsequent trials for the same offense, the principles expressed would apply to a subsequent trail for any offense.
Records of courts of inquiry. Matters pertaining to the use of records of courts of inquiry are the subject of this new subparagraph. It was I thought desirable to include this matter as a separate subject so that it could be more thoroughly discussed. In the first paragraph, the grounds for introducing this type of former testimony have been made to parallel the grounds for introducing former testimony in general.
The last paragraph contains material similar to that set forth in the I last paragraphs of 145a and b. See United States v. Sippel, 4 USCMA 50, 15 CMR 50 (1954).
Memoranda. In the first paragraph, the rule pertaining to memo-randa used to establish past recollection is given a somewhat broader scope in accordance with more modern views on the subject. It is stated that the witness need only be able to state that the memorandum repre- sents his past knowledge possessed at a time when his recollection was reasonably fresh as to the facts. See United States v. Day, 2 USCMA 416, 426, 9 CMR 46, 56 (1953). With respect to the material in the first paragraph dealing with memoranda used only to refresh the recollection of the witness, the example with respect to the use of a newspaper account was deleted since, as now pointed out in the second paragraph, a
AGO 20081A
Pam 27-2

Paragraph newspaper account can be used even to establish past recollection if, for example, the witness read it and found it to be correct when his memory was reasonably fresh as to the facts. See generally Underhill, Criminal Evidence, $§ 499-501 (5th ed. 1956) ;Wigmore $ 738.
In the second paragraph, the theory of admissibility of memoranda used to establish past recollection is explained. Such a memorandum need not be of a kind which itself would be admissible to prove the truth of the matters stated therein as an exception to the hearsay rule. See Papalia v. United States, 243 F. 2d 437 (5th Cir. 1957) ;People v. Hobson, 369 Mich. 189,119 N.W. 2d 581 (1963) ;20 Am. Jur. Fvidence $946 (1939).
In the third paragraph, a rule was inserted as to the admissibility on behalf of the opposite party of a memorandum used to refresh the mem- ory of a witness and the purpose for which the memorandum is admitted or exhibilted. Of coullse, the anililtary judge or president of a gpecid court- martial, as appropriate, may also require its exhibition for the purpose of determining whether it could have refreshed the memory of the witness. See Wigmore, $ 763.
Afidavits. The material pertaining to the admissibility of affidavits was entirely rewritten to indicate that in this subparagraph only affida- vits and other written statements offered in the pre-findings part of the proceedings are being considered. A cross reference to paragraph 75c refers the reader to the rules applying to affidavits after findings. Affida- vits and other written statements as to the character of the accused offered before findings should be limited to the kind of character evidence otherwise admissible. Also, if the defense uses affidavits or other written statements for this purpose by virtue of this subparagraph, the prosecu- tion also will be given the opportunity to use affidavits or other written statements as to character in rebuttal.
Judicial notice. The examples of judicial notice contained in the second paragraph were revised mainly with a view to insuring that judi- cial notice may be taken of any signature or seal furnishing the last, or final authenticating, link in the chain of authentication of an official record or copy thereof in accordance with any of the methods prescribed for authenticating the particular record or copy under 143b(2). Exam- ples falling within this category and other authenticating examples will not generally be further discussed, since their import is obvious. See also in this connection the discussion of the last paragraph of 147a.
In the first group of examp1es;the new matter concerning the taking of judicial notice of facts and propositions which are of generalized knowledge, which are of notoriety in the area of the trial, or which can be readily ascertained is derived from Rule 9 of the Uniform Rules of Evidence (accord, Weaver v. United States, 298 F. 2d 496 (5th Cir. 1962) ).
In the third group of examples, there are mentioned as appropriate subjects of judicial notice the contents of official information ‘bulletins, manuals, and pamphlets of Federal agencies, and this same category is again repeated in the eighth group of examples with respect to similar informational material of military agencies, the latter inclusion being merely a clarification of similar provisions contained in the former Man- ual. These provisions are not inconsistent with the opinion of the Court of Military Appeals in United States v. Jensen, 14 USCMA 353, 34 CMR 133
AGO 20081A

Pam 27-2
Paragraph

(1964), for a ruling as to taking judicial notice may or may not be binding on the court members, depending upon the nature of the material. When the court members are asked to take judicial notice of a matter than involves a question of fact in determining whether the matter is judically noticeable, the military judge should rule that the court may, or mag not, take judicial notice of the matter. If the matter involves only a question of law or if it relates to an interlocutory question the military judge should rule that judicial notice will, or will not, be taken of the matter. ACM 5309, Slavick, 5 CMR 616 (1952) ; Wigmore § 2567. Cer- tainly, official definitions of technical and scientific terms, as prescribed technical procedures, of a nonlegal nature should be judicially noticeable by court members in appropriate cases in any modern armed force. It
should be noticed that the rules discussed here are not nearly so broad as that set forth in Rule 63(31) of the Uniform Rules of Evidence (1958), which would allow any learned treatise or textbook to be received in evidence as an exception to the hearsay rule and not, as in the Federal courts (see Stottlem,ire v. Cawood, 215 F. Supp. 266 (D.C.D.C., 1963) and cases there cited), only for the purpose of cross-examining an expert. Further material was added concerning the taking of judicial notice of general maritime law (Black Diamond S.S. Corp. v. Robert Stewart & Sons, 336 U.S. 386,396 (1949) ) and of the law of the air.
In the fourth group of examples, provision is made for taking judi- cial notice of the signatures of the principal officials of the Federal Gov- ernment of the United States purportedly written in their respective official capacities, whether or not these signatures are for the purpose of authenticating official records. This appears to be the generally accepted limit of the rule when authentication of official records-or of orders,
I

directives, or publications which are independently judicially noticeable -is not involved. See United States v. Bryson, 3 USCMA 329, 12 CMR 85 (1953) Wigmore, $5 2167, 2168. The dicta in Bryson concerning the possibility of presuming the genuineness of the signatures of all Federal officials is not supported by the authorities.
The seventh example was inserted to make explicit the exception, which exists with respect to official records, to the general rule that State or foreign law may not be used in court-martial proceedings to determine I the sufficiency of an authentication of a writing. United States v.’Bryson, supra.
The eighth group of examples was enlarged to include the National Guard and military agencies or units of allies of the United States. See also the preceding discussion relating to the third group of examples. This , change should obviate for the military the difficulties encountered in Mole
v. United States, 315 F. 2d 156 (5th Cir. 1963), in which a conviction for impersonating a British RAF officer was reversed on appeal because of lack of Rule 44 authentication of an extract copy of British RAF uniform regulations. Also, cases having facts similar to those in Mole might be differently decided under the new Rule 44 and the Manual provisions in 143b(2) (e)-see particularly the inference stated in the last paragraph of 143b(2) (e)-for in Mole the extract copy of the regulations was attested by an RAF officer in charge of administration of the RAF staff of the British Embassy in Washington and the attestation was authenticated by a certificate of the British Consul-General stationed there.
The last example permits judicial notice to be taken of the actual duties of a person who has signed a writing in a capacity which would
AGO 20081A

Pam 27-2
Paragraph
allow judicial notice to be taken of his signature. Although there is some disagreement as to whether this recognition of duties should be called judicial notice or should be considered as falling within the realm of inference it seems wise to treat the matter under judicial notice as well, thus giving greater scope to the inquiry as to the actual duties of the signer. See Wigmore, §§ 2161, 2162, 2168.
The third paragraph of 147a is a revision of similar material appear- ing in the same place in the former 147a. Unlike the former Manual, the word “authentic” is not used in describing the source of relevant informa- tion which may be used in taking judicial notice, this word not represent- ing a legitimate limitation upon the taking of judicial notice. Rule 10, Uniform Rules of Evidence; Wigmore, 5 2568a. It is also pointed out that the court is not legally required to reject a source of relevant information on the ground that a more primary source is or may be available. Rule 10(2), Uniform Rules of Evidence.
The last paragraph is new and states the rule that some judicially noticeable matters are subject to contradiction. Wigmore, $8 2566, 2567. This paragraph also clearly indicates that the Manual provisions for judicial notice combine, for convenience of reference and to avoid unnec- essary distinctions, the principle of judicial notice in its narrow sense with the principle of inferring the genuineness of certain signatures and seals. See Wigmore, $ 2161 (3).
Determination of foreign law. This subparagraph was entirely re-vised to delete the former requirement that foreign law be treated and proved as a question of fact. This requirement is now speedily becoming an anachronism, and certainly should be considered as such in the mili- tary community with its widespread international responsbiilities. The approach adopted here is that found in Rule 26.1 of the Fedei-a1 Rules of Criminal Procedure, effective 1 July 1966 (see U.S.C.A., 1966 Pocket Part). Although the distinction between taking judicial notice of foreign law and the procedure for determining foreign law set forth in the new 147b may appear to be slight, this procedure places a more positive obli- gation upon the authority charged with determining the law in the case to inquire into what the foreign law in issue really is, rather than to leave the matter depending upon the will or ingenuity of the parties or to decide it by guesswork or indulgence in presumptions of similarity which, when examined, are usually found to have no basis in fact.
Comp.etency of witnesses. Only clarifying changes were made in this material, although in subparagraph a it is indicated that the presumption of competency is not overcome until the incapacity of the witness appears by clear and convincing evidence. See O’Shea v. Jewel Tea Co., 233 F. 2d 530 (7th Cir. 1956).
Interest of bias and competency and privileges of husband and wife, the accused, and accomplices. The second paragraph, which contains the military rules of evidence concerning the privilege against adverse mari- tal testimony, was entirely rewritten. The third and fourth sentences, pertaining to extrajudicial statements, are new. Wigmore, 5 2232 ;see also ACM 7732, Hawley, 14 CMR 927 (1954). The exceptions to the general rule-that both spouses have the privilege-have been divided into two segments. First, the privilege does not exist in favor of the accused spouse when the other spouse has been injured by the offense charged, but,
AGO 20081A
Pam 27-2
Pmagraph
except as will be mentioned later, the witness-spouse retains the privilege.
United States v. Moore, 14 USCMA 635, 34 CMR 415 (1964). Except as
otherwise provided in the paragraph, this limitation upon the privilege
applies only when the offense was committed after the marriage or, if
before it, when the offense was unknown to the injured spouse at the time
of the marriage. See United States v. Williams, 55 F. Supp. 375, 379 (D.
Minn, (1944); CM 348276, Richardson 4 CMR 415, 419

(1952), af’d United States v. Richardson, 1 USCMA 558, 4 CMR 150 (1952). In the examples of offenses against the witness-spouse, the archaic offense of polygamy was omitted. Added to the offenses found in the former Manual are the offenses of adultery (United States v. Leach, 7 USCMA 388, 22 CMR 178 (1956) ; Wigmore, $ 2239 at 249), and mis- treatment of a child of the witness-spouse (State v. Kollenborn, 304 S.W. 2d 855 (Mo. 1957);Wigmore, 4 2239 at 248 ;and see Rules 23 (2) and 28 (2), Uniform Rules of Evidence).
Although the Court of Military Appeals, in United States v. Massey, 15 USCMA 274, 35 CMR 246 (1965), held that an offense against the child of the witness-spouse was not an injury against her and therefore that she could not even voluntarily testify against her husband over his objection, the effect of this case is not compatible with the needs of the military service, in which, especially overseas, large groups of military personnel and their dependents live in closely knit communities. In these communities and generally in military life, child beating and child moles- tation by parents cannot be tolerated and certainly should not be facili- tated by a rule of evidence prescribed in the Manual. The marital privi- lege has no constitutional source and is merely a rule of public policy, particular attempted applications of which should succumb to greater public policy operating in the opposite direction. The case of United ( States v. Rener, 17 USCMA 65, 37 CMR 329 (1967), in which it was held that because of the husband’s assertion of the privilege the wife should ndt have been permitted even voluntarily to testify against him in a prosecution for adultery and unlawful cohabitation, also has not been followed, for the wife is injured by these offenses which are obviously directly deleterious to the martial relationship. Wigmore, 8 2239, at 249.
The example with respect to forgery was rephrased to indicate that Ithe forgery must constitute an injury to the legal rights of the other spouse. See United States v. Wooldridge, 10 USCMA 510, 28 CMR 76 (1959).
I

In the second group of exceptions to the privilege are those in which neither spouse has’the privilege and these are set forth in indented form. The first such instance is reflected in Wyatt v. United States, 362 U.S. 525 (1960). The second is indicated in the policy of the statute cited therein. See and compare the language as to husband and wife “competency” in the Act of March 3, 1887, chapter 397, 8 1, 24 Stat. 635 (repealed by the Act of June 25, 1948, chapter 646, $ 39, 62 Stat. 992). The third results from the rationale of the decision in Lutwak v. United States, 344 U.S. 604 (1953), and the fourth grows out of the fact that this privilege, unlike the privilege pertaining to confidential communications between husband and wife, does not survive the termination of the marriage. Pereira v. United States, 347 U.S. 1(1954) ;Wigmore, $2237.
Material was added to indicate that if the defense, through the testi- mony of the accused or otherwise, introduces evidence concerning a com-
AGO 20081A

Paragraph munication between the accused and his spouse, the accused may not assert the privilege so as to prevent the use of his spouse as a witness in an attempt to contradict that evidence. United States v. Trudeau, 8 USCMA 22, 23 CMR 246 (1957). It is also stated that, except as indicated above, an accused who testifies in his own behalf does not, merely by
reason of so testifying, waive the privilege. United States v. Massey, supra; United States v. Trudeau, supra; and see Wigmore, 8 2242. Of course, a valid claim of the privilege cannot be considered as raising an inference that the spousal testimony would be unfavorable to the accused. Wigmore, $ 2243, Rule 39, Uniform Rules of Evidence. In this connection, however, it may be that there are certain circumstances in which a failure by the accused to call his spouse when neither spouse has asserted the privilege would be a proper ground of comment by the prosecution in argument. See Bisno v. United States, 299 F. 2d 711 (9th Cir.), cert. denied, 370 U.S. 952 (1962).
In the last paqgraph of 148e, it :has been pointed ,out that a grant, as well as a promise, ,of immunity does not make a person incompetent as a witness. United States v. Stoltx, 14 USCMA 461, 34 CMR 241 (1964).
Examination of witnesses. General. No substantial changes were made in this subparagraph but clarifying matter has been inserted in some of the paragraphs. In the third paragraph, a cross reference to 54b was added since the revision of that paragraph will clarify the role of the court member in calling for witnesses and evidence and in recalling wit- nesses.
Cross-examination. In the first paragraph, it is stated that cross-ex- amination of a witness need not be restricted merely because it appears to be repetitious of the questioning of the witness on direct examination. Although the Court of Military Appeals has not made a point of this, it has been noted that there have been a number of cases in which it was erroneously thought by counsel that cross-examination could be restricted on this ground.
In the second paragraph, there is an added cross reference to 153b(2) (b) as to limitations applicable to cross-examination concerning acts of misconduct of a witness. This matter is discussed under the discus- sion of subparagraph 153b (2) (b).
In the last paragraph, there is a new cross reference to subparagraph 138g concerning limitations upon cross-examination of the accused con- cerning other offenses or acts of misconduct. This matter was previously discussed under that subparagraph and is further mentioned in the dis- cussion of subparagraph 153b(2) (b). Also, the general rule as to the accused’s waiver of the privilege again$ self-incrimination by testifying was included. Wigmore, 5 2276(b) (2). The last paragraph has been changed to implement the decision in U.S. v. Lovig, 15 USCMA 69, 35 CMR 41 (1964) Restrictive language concerning cross examination after an accused testifies concerning his guilt or innocence of offense has been removed. As pointed out in Lovig, it is not the announced intent of an accused to limit his testimony but whether the content of the testimony is so limited which is controlling as to the proper scope of cross-examina- tion. The matter formerly covered in the last sentence was replaced by a reference to 140a, and the word “thereby” (see L7nited States v. Miller, 14 USCMA 412, 34 CMR 192 (1964)) was inserted both here and in 140a to indicate that the accused, merely by testifying that the inculpatory state-

AGO 20081A
Pam 27-2

Paragraph
149c(l)(b)
Paragraph
AGO 20081A
Supreme Court laid down a new rule of convenience concerning the relationship between the States and the Federal Government in connection with grants of immunity. Apparently, under the Murphy case, read to- gether with Adams v. Maryland, 347 U.S. 179 (1954)-see Murphy, supra, at 75, 104, it still remains the law that for a grant of immunity to be effective as to offenses within the jurisdiction of the forum the grant must protect its recipient from being tried at all for any such offense as to which his testimony might tend to incriminate him (see dso) Albertson v. Subversive Activities Control Board, 382 U.S. 70 (1969)), but as to offen- ses against the laws of other jurisdictions-for example, State jurisdic- tions when the forum is a Federal court, and vice versa-it is sufficient if the grant prevents the use ,of the answer and its fruits in connection with a prosecution of the witness by the other jurisdiction, which remains free to prosecute on the basis of information independently obtained. The Su- preme Court in Murphy expressed its intent to police this area of the law by forbidding the use of the compelled answer and its fruits in the other jurisdiction when it has the power to do so. Consequently, for example, it would seem that a witness who is given a grant of immunity by an officer exercising general court-martial jurisdiction over him may be required to answer in a court-martial case despite his objection of self-incrimination under State law, but the State would not be able to use the compelled testimony or its fruits in connection with prosecution against him. Such a grant would not be effective with respect to possible self-incrimination concerning offenses against the laws of a foreign country under the Mur- phy arrangement, since in this situation the Supreme Court would be without the policing powers previously mentioned. See also United States
v. Kirsch, 15 USCMA 84, 35 CMR 56 (1964) ;ACM 10757, Guttenplan, 20 CMR 764 (1955). Additionally, an international violation of any of the provisions of Article 31 is an offense under Article 98. Hearings on H.R. 2498 Before a Subcommittee of the Committee on Arnzed Services House of Representatives, 81st Cong. 1st Sess. 984 (1949). .

The next to the last two sentences in the third paragraph are derived from Rogers v. United States, 340 U.S. 367 (1951) insofar as the princi- ple of waiver applied in that case relates to trials. In Miranda v. Arizona, 384 U.S. 436, 476 n. 45 (1966), the Supreme Court held that this type of waiver could not be applied in police interrogations. As to the waiver being limited to the trial in which the answer was given, see In Re Neff, 206 F. 2d 149 (3d Cir. 1953).
Some new material was added in the fourth paragraph concerning the prohibition against raising certain inferences from an assertion by a witness of the privilege against self-incrimination. Billeci v. United States, 184 F. 2d 394 (D.C. Cir. 1950); United States v. Bolden, 11 USCMA 182,28 CMR 406 (1960) ;Wigmore, $2272, at 437.
The expladation of the privilege against compulsory self-incrimina- tion adopted in the first two sentences of the next to the last paragraph of this revision of 150b is that adopted by the Supreme Court. Gilbert v. California, 388 U.S. 263 (1967) (making handwriting sample not covered by the privilege) ; United States v. Wade, 388 U.S. 218 (1967) (voice identification utterances not covered) ;Schmerber v. California, 384 U.S. 757 (1966) (taking blood sample not covered). It is also pointed out in the last sentence of this paragraph that the privilege is not violated by the use of compulsion in requiring a person to produce for use as evidence or otherwise a record or writing under his control when that record or
Paragraph court-martial procedures would be contrary to the pretrial procedures of both the Code and the Manual and, actually, would be administratively impossible. Therefore, a very liberal approach was taken in 115c to per- mit use and examination by the defense of documentary and other evi- dence in control of military authorities. Despite the apparent uncertainty of the Court of Military Appeals as to the applicability of the Jencks Act in military practice indicated in United States v. Walbert, 14 USCMA 34, 33 CMR 246 (1963), a later case fom that Court indicates that the Court will insist upon pretrial disclosure as it has customarily been practiced in the military. See United States v. Enloe, 15 USCMA 256, 35 CMR 228
(1965). The mentioned new material in this paragraph should provide all the protection for the government-principally in security cases-which is reasonably necessary or proper. Although the Jencks Act itself does not
apply to military procedures, governmental suppression or bad-faith de- struction of statements of government witnesses will have the results indicated in subsection (d) of the Act. See Augenblick v. United States, 180 Ct. C1. 131, 377 F. 2d 586 (1967).
Communications between husband and wife, client and attorney, and penitent and clergyman. A number of changes were made in this subparagraph. It is pointed lout in the first paragraph that the marital privilege concerning communications will not apply when the ma,rital relationship was a sham at the time the commu-nication was made. See Lutwak v. United States, 344 U.S. 604 (1953). The general rule concerning the client and attorney privilege was re-stated to indicate that the communicati~on between client and attorney is privileged if it was made in connection with the relationship of client and attorney. Wigmore, $ 2310. That relationship normally exists during ne- gotiations to employ civilian counsel, whether or not that counsel accepts the employment. Wigmore, $ 2304. It is also pointed out rthat communica- tions within the relationship made by an agent of the client are privi- leged. Wigmore, $ 2317(1) ;Rule 26(3), Uniform Rules of Evidence. Fur- ther, it is stated that communications which contemplate the future com- mission of a fraud, as well as a crime, are not protected by the privilege. Wigmore, $2298, and see the Federal cases cited under note 1thereto. The revision makes it clear that “counsel” in any military investigatilon or pro- ceeding are to be considered (at attorneys in connection with the client and attorney privilege. This provision seems wise in view of the increased use of counsel in military boards and investigations today. The penitent and chaplain privilege was broadened so that the privilege will be applicable in the military to any penitent, not just one who is, as the former Manual put it, “subject to military law.” No such distinction appears to be justi- fied. See Rule 29, Uniform Rules of Evidence. In the next to the last sentence of the first paragraph, it is indicated that these privileges are not applicable when the spouse, client, or penitent made the communica- tion intending that it be passed on to someone outside the privileged relationship, and that these privileges are also not applicable to a commu- nication between husband and wife, client and attorney, or penitent and clergyman if to the knowledge of the spouse making it or the client or penitent it was made in the presence of someone out the privi-leged relatiomhip capable of understanding the oommunilcation. Wolfle v. United States, 291 U.S. 7 (1934) ; United States v. Winchester, 12 USCMA 74, 30 CMR 74 (1961) ; United States v. McClziskey, 6 USCMA 545, 551, 20 CMR 261, 267 (1955) ;Wigmore, $$ 2311, 2336. In
AGO 20081A

Pam 27-2
P,magraph

the last sentence of the first paragraph, it is stated that a person inter-
preting the communication as the agent of either party thereto and an
agent of the client, attorney, or clergyman is not outside the privileged
relationship. Obviously, if an interpreter is needed in making the commu-
nication, this should not destroy the privilege. As to agents of the other
kinds described, see United States v. McCluskey, supra, and Wigmore, 3
2311.

In the first sentence of the second paragraph, an example of waiver is
4

given-consent to a disclosure at a previous trial or hearing. See Wig- more, $5 2340, 2328(1). Since the reason for the termination of the privilege under these circumstances is the publicity which has been given to the communication with the consent of the holder of the privilege, there is no reason why the previous trial or hearing should be another hearing of the same case in order to effect a waiver. The second exception to the general rule preventing disclosure of these privileged communications was modified in accordance with the language and approach used generally in discussing these communications and also to point out that the exception does not apply when the person outside the privileged relationship ob- tained his knowledge or possession of a privileged communication between client and attorney or penitent and clergyman in a manner not reasonably to be anticipated by the client or penitent. This is the rule made applicable to the client and attorney privilege by Rule 26 of the Uniform Rules of Evidence. It was extended to the penitent-clergyman privilege as well, since in the military community this protection would appear to be desirable as to both privileges. These protections, as distinguished from the “conivance” protection, are not applicable with respect to the husband and wife commu- nication privilege. Wolfle v. United States, suwa; United States v. Higgins, 6 USCMA 308,20 CMR (1955).
In $he third pargraph, it is indicated that an accused who testifies in his own behalf, or a person who testifies under a grant or promise of immunity, does not waive these privileges merely by reason of so testify- ing. United States v. Trudeau, 8 USCMA 22, 23 CMR 246 (1957) ; United States v. Fair, 2 USCMA 521, 10 CMR 19 (1953) ; Wigmore, 5 2327. Of course, a valid assertion of these privileges by the accused or a witness
I

should not be considered as raising an inference that the communication as to which the privilege was asserted would be unfavorable to the accused. Wigmore, 5 2322; Rule 39, Uniform Rules of Evidence. It is also pointed out that if the defense introduces evidence concerning a communi- cation between the accused and his spouse, the accused may not assert the privilege pertaining to confidential communications between husband and , wife so as to prevent an attempt to contradict that evidence. United States v. Trudeau, supra; Wigmore, $ 2340. See also Rules 23(2) and 28 (2), Uniform Rules of Evidence.
Confidential and secret evidence. The last sentence of the first para- graph now provides for the release of testimony and exhibits contained in investigations of the Inspectors General when material to a “military course of justice” other than the actual trial by court-martial. This was done because it was found that the former provision was interpreted too literally, for example, as not applying to an Article 32 investigation.
Communications to medical officers and civilian physicians. There is no generally recognized patient-physician privilege. Wigmore, 8 2380a; see also the physician-patient privilege in Rule 27 of the Uniform Rules of
AGO 20081A

Pam 27-2
Paragraph

being due to trespass. As to unlawful seizures during a lawful search, see Zap v. United States, 328 U.S. 624, 629 (1946) ; ACM 4163 Johnson, 2 CMR 644, 647 (1951); cf. United States v. Thomas, 16 USCMA 306, 36 CMR 462 (1966) (involving not merely a seizure but also a search of the contents of the seized bottle found to contain heroin).
The exclusionary rule, of course, applies to derivative evidence ob- tained as a result of information supplied by the illegal search on the ground that it, too, has been obtained as a result of the illegal acts. However, in Wong Sun v. United States, 371 U.S. 471 (1963), the Su- preme Court stated that evidence would be considered as having been obtained as a result of the illegal acts only if it has been come at by an exploitation of those acts instead of by means sufficiently distinguishable to be purged of the taint of the illegality. See also United States v. Wade, 388 U.S. 218 (1967) ;HofSa v. United States, 385 U.S. 293, 309 (1966). The Court of Military Appeals has recently adopted this phraseology and its theory in a case in which there was a question as to whether derivative evidence had been obtained in violation of Article 31 (United States v. Workman, 15 USCMA 228, 35 CMR 200 (1965)), and even before the Wong Sun case the Court had seemingly applied the theory to a search situation. United States v. Ball, 8 USCMA 25,23 CMR 249 (1957).
The third paragraph pertaining to the government’s right to use evidence obtained as a result of an unlawful search to rebut testimony introduced by the defense on certain matters was taken from Walder v. United States, 347 U.S. 62 (1954). See also United States v. Grosso, 358
F. 2d 154,162 (3d Cir. 1966).
Consideration was given to adding a paragraph after the third para- graph to indicate, in accordance with the so-called “spiked mike” case (Silverman v. United States, 365 U.S. 505 (1961) ), that a search for property includes any physical intrusion into the property for the purpose of gathering evidence or information. This idea was abandoned on the basis that such a statement could cause confusion in view of the recent Supreme Court decisions in HofSa v. United States, 385 U.S. 293 (1966), and Lewis v. United States, 385 U.S. 206 (1966). The act of an under- cover government agent in gaining acceptance, through misrepresen- tation, as a participant in a criminal transaction, such as an illegal sale of narcotics, whereby he gathers evidence or information within the scope of the transaction while in the home of the other party thereto is not a search (Lewis v. United States, supra), nor is the act of a paid government informer in requesting and obtaining a conference with an acquaintance whereby the informer is present when the acquaintance, relying on the supposed confidence of the acquaintanceship, makes self-incriminating statements in the acquaintance’s hotel room (HofSa v. United States, supra). See also Lopez v. United States, 373 U.S. 427 (1963) ;cf. Osborn
v. United States, 385 U.S. 323 (1966).
The examples of lawful searches in the fourth paragraph were changed so that they will be in accordance with modern legal views on the subject. As to arrest searches-the second example-see United States v. Ross, 13 USCMA 432, 32 GMR 432 (1963). The rules applying to arrest searches when they involve an intrusion into the body were taken from Schrnerber v. Califcrrnia, 384 U.S. 757 (1966). As to the new third exam- ple concerning hot pursuit searches, see Warden v. Hayden, 387 U.S. 294
AGO 20081A

Paragraph (1967). A fourth example was added concerning searches of open fields or woodlands, with or without the consent of the owner or tenant. Hester v. Unit,ed States, 265 U.S. 57 (1924) ; Underhill, Criminal Evidence, 5 411 (5th ed. 1956), and cases there cited; and see United States v. Burnside, 15 USCMA 326,35 CMR 298 (1965).
The consent search in the sixth example was modified to indicate that the owner is not always the person from whom consent must be obtained in order to have a lawful consent search. See Stoner v. California, 376
U.S. 483 (1964) ; United States v. Mathis, 16 USCMA 522, 37 CMR 142 (1967) (consent of one having an equal interest with another is sufficient) ; United States v. Garlich, 15 USCMA 362, 35 CMR 334 (1965). It is not sufficient, for example. Eo:. a hotel proprietor to give the police consent to search a hotel room v7hq1l tm: search is directed against the occupant of the room and the occu~aill lids :rot xiven his consent to the search.
Military searches jn .l.be sevei-,ti1example were rewritten, first for the sake of clarificatiori lint mvre iziqortantly to indicate that the type of military search aut2ir)~ized by is [cmmanding officer must be based upon probable cause. See r.y:;zfcd Stt?,tes 9.Hartsook, 15 USCMA 291, 35 CMR 263 (1965). Also, it is !ndic:t.,t: t’riat delegations of the authority to order searches, when made,, si!o::!d be: inczde to impartial persons. United Stat.es
v. Ness, 13 USCMA 3 8, 22 _’M.Fi::. 18 (1962) ; United States v. Drew, 15 USCMA 449, 35 CMit .22j (1’365). It is provided that these delegations may be not only to gt:rso?l.s :)f the command but also to persons “made available” to the comn;andilie officer. This was provided as it was envi- sioned that in areas of j:i:xl-~. !:oncentration of military personnel it may become desirable to establi::ti a military magistrate for several commands. The commander who auti;c?~izes the search need not make the search himself, but he may do so. See United States v. Hartsook, supra.
At the end of all the examples of lawful searches, it is indicated that there may be other searches which are “reasonable,” and therefore lawful, for the constitutional prohibition is against unreasonable searches. Cooper v. California, 386 U.S. 58 (1967) ; United States v. Herberg, 15 USCMA 247, 35 CMR 219 (1965). Although the former Manual spoke of “customary” searches, these, of course, would have to fall within the “reasonable” category if they are to be held lawful.
The fifth paragraph reflects the abandonment by the Supreme Court, in Warden v. Hayden, supra, of the supposed former prohibition against searches and seizures to obtain “mere evidence” of crime and contains the rules laid down in the Hayden case. The word “dwelling” was added in this paragraph to the 4th Amendment’s list of matters protected from the kinds of searches proscribed therein. Stoner v. California, supra. It should be noted that in Go-Bart Importing Company v. United States, 282 U.S. 344 (1931) and Goulded v. United States, 255 U.S. 298 (1921), a person’s office was held to be within the protection, apparently having been considered an “effect” in those cases. See also HofJa v. United States, sups, at 301. Although an automobile would be included within “effects,” it was added to the list of protected matters in view of the fact that automobiles are frequently involved in military searches. See, e.g., United States v. Gn.;.li::;’L, 15 USCMA 362, 35 CMR 334 (1965). In connection with the matter:- protected by the Amendment, see also Hester v. United States, supra; Wigmore, 5 2184a, para. lb(vii). The last sentence points out that the restriction in this paragraph does not apply

AGO 20081A
Pam 27-2
Paragraph
to administrative inspections or inventories. As to these inspections and
inventories, see See v. City of Seattle, 387 U.S. 541 (1967) (civilian
inspection) ; Camara v. Municipal Court, 387 U.S. 523 (1967) (civilian
inspection) ; United States v. Kaxmiercxak, 16 USCMA 594, 37 CMR 214
(1967) ;United States v. Lunge, 15 USCMA 486,35 CMR 458 (1965).

In the sixth paragraph, a definition of what constitutes probable cause for ordering a search is given. See the definition developed by the Supreme Court in Aguilar v. Texas, 378 U.S. 108 (1964), which was again used by the Supreme Court in United States v. Ventresca, 380 U.S. 102 (1965). See also United States v. Penman, 16 USCMA 67, 36 CMR 223 (1966) ; United States v. Hartsook, supra. It will be noted that this definition refrains from discussing the degree of particularity which is to be used in describing the criminal items which are to be searched for. This is a matter which seems better left to the future decisions of the courts. Compare, for example, United States v. Schafer, 13 USCMA 83, 32 CMR 83 (1962), with United States v. Hartsook, supra. see also War-den v. Hyden, supra; Stanford v. Texas, 379 U.S. 476 (1965).
The seventh paragraph deals with procedural matters concerning the burden of proof on the interlocutory matter of the lawfulness of the search, and the need for showing by clear and positive evidence that there was consent to the search, if consent is advanced as the reason for the search being lawful. United States v. Herberg, supra; United States v. Sessions, 10 USCMA 383, 27 CMR 457 (1959) United States v. Berry, 6 USCMA 609,20 CMR 325 (1956).
The eighth paragraph points out that unlike the Federal district courts (see Fed. R. Crim. P. 41(e)) military courts, because of their limited functions, have no authority to entertain motions for, or to order, the return or suppression of evidence obtained as a result of an unlawful search or seizure, although they may, of course, rule as to whether or not the evidence is admissible against the accused. However, the inflexible provision concerning procedural matters contained in the fifth sentence of the former first paragraph of 152 has not been retained. That sentence indicated that an objection on the basis of illegally obtained evidence was properly made at the time the prosecution attempts to introduce the
I

evidence.
The next to the last paragraph deals with evidence obtained as a result of violations of § 605 of the Communications Act of 1934, 48 Stat. 1103 (1934), 47 U.S.C. 8 605 (1964). It is pointed out that this section
I

does not apply to communications over a self-contained military communi-cations system, nor does it apply to communications over an unlicensed, private communications system. United States v. Gopaulsingh, 5 USCMA 772, 19 CMR 68 (1955) ; United States v. Noce, 5 USCMA 715, 19 CMR 11(1955).
Credibility of witnesses. The first changes in this subparagraph ap- pear in the second paragraph. As to the rule that accomplice testimony “is of questionable integrity and is to be considered with great caution,” it is indicated that the rule applies even if the testimony is apparently corro- borated (United States v. Winborn, 14 USCMA 277, 34 CMR 57 (1963)) and that, due to the history of and reason for the rule (see United States
v. Scoles, 14 USCMA 14, 33 CMR 226 (1963)), the rule as such applies only to accomplice testimony adverse to the accused. It is also pointed out
AGO 20081A

Paragraph in this paragraph that in proper cases the rules mentioned therein should, upon request by the defense, be made the subject of instructions. Only in exceptional cases will a failure to give unrequested instructions of this kind result in reversal of a conviction. United States v. Stephen, 15
USCMA 314, 35 CMR 286 (1965) ; United States v. Crooks, 12 USCMA 677, 31 CMR 2863 (1962). Upon such a request, the determination of matters of the kind involved in these rules is ordinarily made by each member of the court in connection with his deliberation upon the findings. For example, if a rule so included in the general instructions involved a determination as to whether certain testimony is self-contradictory, ade- quately explained, uncorroborated, uncertain, or improbable or whether special standards applying to proof of falsity have been met, the members of the court should also be instructed that such a determination is to be made by each member in connection with his deliberation upon the find- ings of guilt or innocence. See generally Weiler v. United States, 323 U.S. 606 (1945); Spaeth v. United States, 218 F. 2d 361 (6th Cir. 1955); United States v. Weeks, 15 USCMA 583, 36 CMR 81 (1966); United States v. White, 14 USCMA 646, 34 CMR 426 (1964). However, if corro-boration of certain testimony is involved and no evidence has been intro- duced tending to corroborate that testimony the members of the court should be instructed that the testimony is uncorroborated. United States
v.
Weeks, supra. If the evidence is conflicting as to whether a witness who has testified adversely to the accused is in fact an accomplice, an instruc- tion as to the rules concerning accomplice testimony should, upon request by the defense, be given nevertheless, but in such a case the members of the court should further be instructed that each member will apply these rules only if he believes that the witness is in fact an accomplice. Gardner

v.
United States, 283 F. 2d 580 (10th Cir. 1960) ; ACM 10050, Graalum, 19 CMR 667, 693 (1955). This latter instruction should also contain ade- quate guidance for the members of the court as to what circumstances would cause the witness to be an accomplice, an “accomplice” for this purpose being a person who was culpably involved in the offense charged. United States v. Wiley, 16 USCMA 449, 37 CMR 69 (1966). If the witness is shown to be an accomplice by undisputed evidence, the military judge, or the president of a special court-martial, should instruct the members of the court that the witness is an accomplice in giving any instructions on accomplice testimony. United States v. Weeks, supra; ACM 10050, Graalum, sup~a. As an exception to the general rule, when it appears that an instruction that the testimony of an ‘accomplice is of questionable integrity and is to be considered with great caution is of vital importance to the accused, it should be given even without a request therefor. United States v. Lell, 16 USCMA 161, 36 CMR 317 (1966); United States v. Stephen, supra.

The third paragraph concerning corroboration by consistent state- ments was revised so as to be more generally stated. See United States v. Sledge, 6 USCMA 567,20 CMR 283 (1955).
The fourth paragraph, which relates to corroboration of an identifi- cation witness at the trial, was broadened to include identification con- cerning persons in the courtroom other than the accused, in accordance with United States v. Tobita, 3 USCMA 267, 12 CMR 23 (1953). Of course, if the introduction of corroborative evidence of this kind would be merely cumulative, its reception may be forbidden by the military judge or special court-martial as a matter of discretion. There is an obvious
AGO 200818
Pam 27-2 Paragraph
153b (2) (a)

need for some discretionary limitation upon this rule in these circum- stances. See Wigrnore, $$ 1124, 1130. As to the material in this paragraph concerning the right to presence [of counsel at a lineup, see Gilbert u. California, 338 U.S. 263 (1967) ; United States v. Wade, 388 U.S. 218 (1967). See also Stovall v. Denno, U.S. (1967).
The fifth paragraph was added to indicate that when a consistent statement is independently admissible, it does not come within the rule which normally excludes consistent corroborative statements. See, for ex-ample, Wigmore, § 1139. As to the definition of “corroborate” in the last paragraph, see Opper v. United States, 348 U.S. 84 (1954).
Impeachment of witnesses. Gelzeral. The rules in the second para- graph concerning the impeachment of one’s own witness were changed in some relatively minor but important respects. The exception relating to indispensable witnesses was changed to indicate that it is the testimony of the witness which must be indispensable, United States v. Reid, 8 USCMA 4, 23 CMR 228 (1957). It is also indicated that the extent of the impeach- ment will be limited by the adverse testimony (Apoduca v. United States, 200 F. 2d 775 (5th Cir. 1953)) but that the adverse witness may be impeached not only by proof of inconsistent statements but also by proof of prejudice, bias, or other motive to misrepresent with respect to the adverse testimony (see Wigmore, 5 901). The word “adverse” replaces the word “hostile” throughout this paragraph because “adverse” is more pre- cise and is really what is meant by “hostile.” For example, a witness may be grossly hostile (unfriendly) yet render only favorable testimony: This will not permit one to impeach his own witness, nor would anyone want to do so in this situation. See 3 Wharton, Criminal Evidence, $ 951 (12th ed. 1955) ;Wigmore, 904(3). In the last sentence, it is indicated that the party may not rely upon statements previously made by the witness if he is in possession of information indicating that the witness is likely to testify contrary to those statements. United States v. Narens, 7 USCMA 176,21 CMR 302 (1956).
As to the rule in the last paragraph concerning impeachment of witnesses for the court, see Litsing.er v. United States, 44 F. 2d 45 (7th Cir. 1930).
I

Various grounds. General lack of veracity. In the 1951 Manual, proof that a witness had a good character as to truth and veracity could be
1

introduced in rebuttal if that character had first been attacked by opinion or reputation testimony, evidence of a conviction of a crime affecting credibility, or a showing of unchaste character in a proper case. These I limitations were removed. Therefore, if the credibility of a witness has been attacked on any ground, proof that he has a good character as to truth and veracity may be introduced. The logic of this proposition seems inescapable. Rodriguez v. State, 165 Tex. Cr. 179, 305 S.W. 2d 350 (1957) ;see Wigmore, 1105-1108.
Conviction of crime. This subparagraph was entirely revised to incor- porate the considerable amount of decisional law which has become avail- able since the former Manual was written. It is pointed out in the first paragraph that non-accusatory questions regarding convictions in general of the type which affect credibility may be properly asked in good faith, whether or not the questioner has information concerning a conviction of any such offense. United States v. Berthiaume, 5 USCMA 669, 18 CMR 293 (1955).
AGO20081A

It was noted that the Court of Military Appeals in United States v Yanuski, 16 USCMA 170, 36 CMR 326 (1966), recognized the authority of the President to prescribe a rule of evidence as to the admissibility of juvenile offenses. Accordingly, a realistic rule was adopted, and evidence of juvenile offenses are not made inadmissible in every situation. In the next to last sentence of the first paragraph, it is provided that a juvenile proceeding, adjudication, or conviction does not qualify as a conviction of the type admissible under that particular paragraph. However, under the sixth paragraph, offenses committed by a witness other than the accused which were subject to the jurisdiction of a juvenile tribunal, whether or not they resulted in a juvenile proceeding, adjudication, or conviction are admissible to impeach that witness if they involve moral turpitude or otherwise affect his credibility. The important consideration here is whether the witness committed an offense that would reflect on his truth and veracity and not whether he was adjudged a juvenile delinquent or otherwise proceeded against or convicted by a juvenile tribunal. As to an accused who testifies as a witness, a conviction by a regular court as discussed in the first portion of the first paragraph of 153b(2) (b) is admissible against him. Other offenses are admissible only in rebuttal of testimony of the accused as provided in the seventh paragraph of 153b (2) (b), and when they so qualify for admission, they are admissible whether or not there was a conviction, adjudication, or proceeding of any type and whether or not they were committed as a juvenile. It was felt that these provisions avoid many legal issues which could be presented in the interpretation of other possible rules on this subject. For instance, the present rules avoid looking behind the results of juvenile proceedings to determine reliability thereof, avoid the necessity of determining if an offense which did not result in a juvenile proceeding could have been treated as a juvenile offense by the jurisdiction involved, and it avoids having inconsistent rules as to the admissibility of various offenses which depend on the laws of the many jurisdictions that would be involved.
The third paragraph contains a number of examples of offenses in- volving moral turpitude or otherwise affecting credibility. Generally, these examples have been taken from decisions of the .Court of Military Appeals or by analogy therefrom. See United States v. Kelleher, 14 USCMA 125, 33 CMR 337 (1963) ; United States v. Moore, 5 USCMA 687, 18 CMR 311 (1955). No doubt there are other offenses affecting credibility, particularly when the circumstances of the case being tried are taken into consideration.
The fourth paragraph points out that a conviction which has been disapproved, set aside, or otherwise reversed, or which is undergoing appellate review, or as to which the time for appeal has not expired is not admissible for impeachment purposes. Beasley v. United States, 218 F. 2d 366 (D.C. Cir. 1954), cert. denied, 349 U.S. 907 (1955) ; United States v. Berthiaume, supra. It also provides, however, that a pending request to The Judge Advocate General to vacate or modify the findings or sentence of a court-martial under Article 69 is not a part of appellate review within the meaning of Article 76.
The sixth paragraph contains the rules concerning attempts to im- peach an ordinary witness-not the accused (United States v. Robertson, 14 USCMA 328, 34 CMR 108 (1963))-by asking him on cross-examina- tion if he has committed an impeaching type of offense, whether or not he
AGO 20081A
Pam 27-2
Paragraph
153b (.2) (c)

was convicted of it, when the questioner has possession of facts which support a genuine belief that the witness has committed the offense. See United States v. Britt, 10 USCMA 557, 28 CMR 123 (1959). With respect to this method of impeachment, however, an exculpatory answer of the witness cannot be contradicted by extrinsic evidence unless that extrinsic evidence would be admissible without regard to the answer-for example, when it would be per se admissible under some other rule of evidence. United States v. Lyon, 15 USCMA 307, 35 CMR 279 (1965).
In the seventh paragraph, it is pointed out that if the defense opens the door by presenting negative evidence concerning the commission of other offenses by the accused, then the prosecution may rebut that nega- tive evidence by proof of other offenses, whether or not the accused has been convicted of them. Walder v. United States, 347 U.S. 62 (1954) ; United States v. Kindler, 14 USCMA 394, 34 CMR 174 (1964) ; United States v. Brown, 6 USCMA 237, 19 CMR 363 (1955). The eighth para- graph states an obvious legal result when evidence of other offenses of the accused is admissible under 138g. United States v. Huimson, 5 USCMA 208,230,17 CMR 208,230 (1954).
In the last paragraph, grants and promises of immunity or other advantage, or hopes therefor, have been added as permissible subjects of inquiry in connection with impeachment (see Alford v. United States, 282
U.S. 687 (1931); Farkas v. United States, 2 F. 2d 644 (1924) ; United States v. Albright, 9 USCMA 628, 26 CMR 408 (1958) ; CM 368839, Perdelwitz, 14 CMR 421 (1954)), as has proof that a witness has charges pending against him for the offense concerning which he has testified or one closely related thereto (see United States v. Hill, 9 USCMA 659, 663, 26 CMR 439,443 (1958) ).
Inconsistent statements. The major change made in the first para- graph is the abandonment of the rule in the former Manual to the effect that extrinsic evidence of an inconsistent statement is inadmissible if the witness admits making the statement. This rule has been supplanted by the contrary rule adopted by the Supreme Court in Gordon v. United States, 344 U.S. 414 (1953). See also Bentley v. State of Alaska, 397 P. 2d 976 (Alaska 1965). Also, it should be noted that the rule in this para-
I

graph requiring the laying of a foundation for the introduction of an
inconsistent statement of a witness does not apply if due to death or
I

insanity of the witness or other cause there has been no reasonable oppor- tunity, by deposition or otherwise, to lay an admissible foundation. This exception to the general rule is of particular importance with respect to , showing an inconsistent statement of an unsworn witness, that is, one who has made another statement which has been received in evidence as an exception to the hearsay rule. See the rule announced in Mattox v. United States, 156 U.S. 237 (1895), as modified by Carver v. United States, 164 U.S. 694 (1897).
The last paragraph was changed to indicate that when a witness who gives no material testimony properly subject to impeachment testifies that he has no knowledge of a certain fact he, as well as such a witness who testifies that he has no recollection, may not be impeached by proof that at some other time he made a statement as to the fact. United States v. Narens, 7 USCMA 176,21 CMR 302 (1956).
AGO 20081A

Paragraph 153b (2) (d)
AGO 20081A

Prejudice and bias. This subparagraph was revised to add that illicit relations of the witness with the accused are also matters which may properly be considered in connection with showing bias. United States v. Grady, 13 USCMA 242,32 CMR 242 (1962).
Guilty state of mind-General. The phrase “guilty state of mind” was substituted for the word “intent” in the heading of this subpara- graph, for intent is simply one example of the various guilty states of mind to be discussed. Furthermore, in subparagraph 154a, the word “require- ment” is used in place of the word “element” found in the former Manual. This substitution has been made to take care of those situations in which a certain state of mind must be regarded ps a requirement of the offense when an issue with respect thereto is raised, even though that state of mind is not normally considered to be a formal “element” of the offense. Perhaps an excellent example of one of these hidden “elements” is the requirement in larceny that the property not only ‘be wrongfully taken, obtained, or withheld, in the sense of that act being merely without right, but also that this wrongfulness be with knowledge of its wrongfulness. Morissette v. United States, 342 U.S. 246 (1952) ; United States 9. Bridges, 12 USCMA 96, 30 CMR 96 (1961) ; United States v. Sicley, 6 USCMA 402, 20 CMR 118 (1955). See also United States v. Goins, 15 USCMA 175, 35 CMR 147 (1964) United States v. 5% Pierre, 3 USCMA 33, 11 CMR 33 (1953). In the first paragraph, desertion, generally, is listed as a specific intent offense. United States v. Huff, 7 USCMA 247, 22 CMR 37 (1956).
EfJect of drunkenness. In the discussion of drunkenness, it is stated that voluntary drunkenness may be shown for the purpose of raising a reasonable doubt as to the existence of actual knowledge when that knowl- edge is a requirement of the offense, as well as in cases involving specific intent or premeditation. United States v. Goins, supra; United States v. Oisten, 13 USCMA 656, 33 CMR 188 (1923) ; United States v. St. Pierre, supra. See also United States v. M’ayville, 15 USCMA 420, 35 CMR 392 (1965). The defense, of course, need only raise a reasonable doubt in order to secure an acquittal, and need not go so far with its evidence of drunkenness as to “show,” “establish,” or otherwise “prove” that the accused did not have the requisite guilty state of mind. Any greater requirement would be to reverse the burden of proof. The paragraph in the former Manual concerning the easy similation of drunkenness and similar matter was deleted. See United States v. Richards, 10 USCMA 475, 28 CMR 41 (1959) (“insanity feigned with ease” instruction con-demned).
Effect of ignorance or mistake of fact. This subparagraph was re- written in view of the many decisions on this subject since the 1951 Manual was written. However, it is still written in very general terms and no attempt was made to provide any hard ,and fast geneml rules Ohat would cover all conceivable cases. This approach was taken because it was felt best to leave the details to case law since the effect of ignorance or mistake of fact so frequently depends on the facts involved in a particular case.
To expound on the first two sentences of the subparagraph, it can be said that if, to indicate the existence of a requisite intent or for any other reason, actual knowledge of a certain fact is a requirement of the offense, ignorance or mistake, no matter how unreasonable, as to that fact on the
154d
Pam 27-2

reasonableness be consistent with the degree of prudence required in order to be a defense. See the second paragraph of the discussion of changes in 154a (4), above.
As to the proper publication of regulations, see the requirement for publishing certain Federal regulations in the Federal Register set forth in 5 U.S.C.A. 5 552 (Special Pamphlet, 1966) as amended by 80 Stat. 250 (1966) which amended the Adminishrative Procedure Act, ch. 324, § 3, 60 Stat. 238 (1964). See also United States v. Aarons, 310 F. 2d 341 (2d Cir. 1962).
Concerning the authority to issue general orders as provided in sub- paragraph 171a, see the first two paragraphs of the discussion of changes in that subparagraph of chapter 28, infra.
Stipulations. Although not mentioned in the text of the Manual, par- ties entering into stipulations should be aware that, in the absence of special circumstances indicating to the contrary, it may be inferred that the parties to a stipulation intended, at the time it was introduced in evidence, that it would remain effective in all subsequent phases of sub- stantially the same litigation between the parties, as in a rehearing or new or other trial of the case, and when this inference is present the stipulation may be received in evidence at the subsequent proceedings even over the objection of the party against whom the stipulation is to be used. Wigmore, 5 2593. However, there are certain situations in which this inference cannot be drawn and the stipulation may not be used in subsequent proceedings, for example, in a rehearing in which the accused has pleaded not guilty, a stipulation entered into by him in connection with his plea of guilty at a previous hearing of the case is not admissible to prove his guilt or to impeach his credibility in regard to his testimony on the issue of guilt or innocence. United States v. Daniels, 11USCMA 52,28 CMR 276 (1959).
As to facts and the contents of writings. New material was added to point out that a party may withdraw from an agreement to stipulate or from a stipulation at any time before the stipulation is received in evid- ence. CM 366984, Herbert, 13 CMR 353 (1953). See United States v. Gerlach, 16 USCMA 383, 37 CMR 3 (1966), as to the prohibition against contradicting stipulations of fact.
As to testimony. As to the new last paragraph of this subparagraph, see ACM 14702 Schmitt, 25 CMR 822 (1958).
A conforming change has been made to provide that a stipulation is not shown to the members of the court, except for inspection of it by the president of SPCM without an MJ for the purpose of determining the admissibility of its contents.
Instructions concerning stipulations received in a joint or common trial. When in a joint or common trial a stipulation by only one or some of the accused is received in evidence, the co~xrt members should be in- structed that is may be considered only with respect to those accused who joined in it. United States v. Thompson, 11 USCMA 252, 29 CMR 68 (1960).
Waiver of objections. The second sentence was modified to indicate that there are some principles of law under which a waiver may add
AGO 20081A
AGO 20081A
Pam 27-2
CHAPTER 28
PUNITIVE ARTICLES

Paragraph
Principals. All after the first three sentences of tthe first paragraph is new. The new material is in recognition of the principle that the perpetra- tor and the aider and abettor may be guilty of different offenses, depend- ing upon the intent which each entertained. See United States v. Desroe, 6 USCMA 681, 21 CMR 3 (1956) ;United States v. Jackson, 6 USCMA 193, 19 CMR 319 (1955).
The second sentence of the third paragraph was deleted. This sent- ence read as follows: “Thus a sentinel or a guard charged with the duty of preventing the removal of government property who stands passively by while such property is taken in or from his presence by persons known to him to be thieves, is guilty of larceny of such property, for he is duty bound to prevent offenses against the property he is protecting, and his inaction in the presence of the perpetrations constitutes assent to, and concurrence in, the larceny.” Inaction cannot be substituted for the re- quired intent, although it may be evidence of that intent. See United States v. Ford, 12 USCMA 31, 30 CMR 31 (1960) ; United States v. McCarthy, 11USCMA 758, 762, 29 CMR 574, 578 (1960) ; United States
v. Lyons, 11USCMA 68,28 CMR 292 (1959).
Accessory after the fact. The substance of the former last paragraph was transposed to be the third paragraph so that the Proof would be last. However, it was modified to incorporate the holding in United States v. Marsh, 13 USCMA 252, 32 CMR 252 (1962), that, as a matter of proce- dure, the principal need not be apprehended or tried prior to the accessory after the fact and that the acquittal of the principal before or after the trial of the accessory after the fact does not bar his conviction or punish- ment. The sentence relating to the inadmissibility of evidence of the result of a prior trial of the principal has been expanded to include both convic- tion and acquittal.
The phrase “actually or constructively” was deteted from (c) of the “Proof.” Article 78 requires that the prescribed acts be committed by a person “. . . knowing that an offense punishable by this chapter has been committed . . . .” Proof of constructive knowledge does not meet a require- ment of actual knowledge. See United States v. Curtin, 9 USCMA 427, 26 CMR 207 (1958).
Lesser included ofenses. The second paragraph of the former Manual contained the following erroneous statement: “An offense is not included within an offense charged if it requires proof of any element not required in proving the offense charged . . . .” The paragraph was rewritten in accordance with the concept expressed in Judge Brosman’s concurring opinion in United States v. McVey, 4 USCMA 167, 175, 15 CMR 167, 175 (1954), which was cited with approval in United States v. Thacker, 16 USCMA 408, 411, 37 CMR 28, 31 (1966). See also Uniteid States v. Magin-
AGO 20081A
Pam 27-2

Paragraph
The former last three paragraphs dealt with the proof of identity, particularly by fingerprints, and the proof of the, fact that there was no discharge by evidence that there is no record of the discharge. These paragraphs were deleted as these matters are adequately covered in Chap- ter XXVII, Evidence.
Effecting unlawful enlistment, appointment, or separation. In the first sentence after “must know,” the words “or have reasonable cause to believe” were deleted as this offense cannot be committed by negligence. See Article 84. The former second sentence was deleted. It stated that: “The term enlistemnt includes induction or any other means of entry into the service of an armed force.” See United States v. Jenkins, 7 USCMA 261,22 CMR 51 (1956).
Discussion of desertion. In the former first paragraph a statement that a member is guilty of desertioil was given in the language of Article 85 (a) (3), as follows :
Without being regularly separated from one of the armed forces, enlists or accepts an appointment in the same or another one of the armed forces without fully disclosing the fact that he has not been so regularly separated, or enters any foreign armed service except when authorized by the United States.

This example was deleted as Article 85(a) (3) establishes a rule of evid-ence by which the intent to remain away permanently may be proved, not a separate offehse. See United States v. Huff, 7 USCMA 247, 22 CMR 37 (1956) ;United States v. Johnson, 5 USCMA 297,17 CMR 297 (1954).
Absence without proper authority with intent to remain away perma- nently (16a(l) ). The last clause in the fourth sentence of the first para- graph read as follows: “and a purpose to return, provided a particular but uncertain event happens in the future, may be considered an intent to remain away permanently.” This clause was deleted in view of United States v. Soccio, 8 USCMA 477, 24 CMR 287 (1957) and United States v. Rushlow, 2 USCMA 641, 10 CMR 139 (1953). The first sentence of the second paragraph is new. See the comment in the previous paragraph, above. The second sentence of this paragraph was the second sentence of 164a(3), MCM, 1951. The last sentence of this paragraph is the same as the last sentence of 164a (1),MCM, 1951.
Quitting unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service (164a(2)). The last five sentences are new. They were added to provide guidance for determining important service within the meaning of Article 85 (a) (2). See United States v. McKenzie, 14 USCMA 361, 34 CMR 141 (1964) ; United States
v. Merrow, 14 USCMA 265, 34 CMR 45 (1963) ;United States v. Hyatt, 8 USCMA 67, 23 CMR 291 (1957) ;United States v. Deller, 3 USCMA 409, 12 CMR 165 (1953).
As Article 85(a) (3) is a rule of evidence, not a separate offense, 164a(3) in the former Manual, entitled “Enlisting or accepting an ap- pointment in the same olr another armed force, or entering a foreign armed service,” was deleted. See the first paragraph of this discussion of 164a.
The former third section under Proof, which was entitled “Desertion by enlisting or accepting appointment in the same or another armed force, or by entering a foreign armed service,” was deleted. See the first para- graph of this discussion of 164a.
AGO 20081A

Pam 27-2
Paragraph

In the paragraph after Proof, entitled “Absence without proper au-thority (Absence without leave),” the second sentence is new and reads as follows: “However, entries that administratively refer to an accused as a ‘deserter’ are not evidence of intent to desert.” See ACM 12395, Graham, 22 CMR 810 (1956). This sentence was substituted for the former sent- ence, which read as follows :
But these entries, even though they refer to an accused as a “deserter,” are not complete evidence of desertion; they are evidence only of the absence without proper authority and attendant facts and circumstances required to be recorded (see 144b),and it is still necessary to prove the other elements of the offense of desertion. (Emphasis added.)
The words, “these entries,” were in reference to the entries described in the preceeding sentence as “entries in the morning report in case of the Army and Air Force and by entries in the service record or unit personnel diary in the case of the Navy, Marine Corps, and Coast Guard.” The length of an absence without authority shown by “these entries” may be of great probative value of the intent to desert as well as of the absence without authority. ‘See United States v. Cothern, 8 USCMA 158, 23 CMR 382 (1957). The substituted sentence was carefully limited to exclude only administrative entries that refer to an accused as a deserter. Other en- tries may be evidence of an intent to desert as well as of other elements of desertion. The present next to last sentence of this section was rewritten in view of United States v. Lovell, 7 USCMA 445, 22 CMR 235 (1956). The former last and next to last sentences of this paragraph were deleted. The first of these provided in effect that anyone who enlisted or accepted an appointment in the same or another armed force, or attempted to do so, without disclosing that he had not been separated, thereby abandoned his status of duty, pass, liberty, or leave and became absent without leave with respect to the former enlistment or appointment. The former last sentence provided similarly that anyone who is absent on a short pass or liberty who is found on board a ship at sea, without authority, bound for a distant port, may be regarded as having abandoned his pass and as being absent without authority. These sentences were deleted to reflect the decision in United States v.Johnson, 7 USCMA 488, 22 CMR 278 (1957). The present last sentence of the first paragraph is new and points out that a return may be effected by return to an armed force other than the one I of which the accused is a member. See United States v. Coates, 2 USCMA
I

625, 10 CMR 123 (1953). The two sentences which form the second paragraph of this section are new. They cover the terniination of absence
I

when the accused is in civilian custody and are based, respectively, upon United States v. Garner, 7 USCMA 578, 23 CMR 42 (1957), and ACM 15734, Webster, 27 CMR 956 (1958). I
The section entitled “Intent in desertion by absence with intent to remain away permanently,” which was formerly composed of one para- graph. The first two sentences of the first paragraph of this section are new. They now correctly state the law concerning intent to remain away permanently. The former first sentence of this section read as follows: “If the condition of absence without proper authority is much prolonged and there is no satisfactory explanation of it, the court will be justified in inferring from that alone an intent to remain absent permanently.” This sentence was deleted, and the matter of a prolonged absence is included in the second paragraph .of this section as one of the circumstances from which an inference that an accused intended to remain absent perma- nently may be drawn. This change places the circumstance of an absence
AGO 20081A
Pam 27-2

Paragraph
for a prolonged duration in proper perspective and is in keeping with the teachings of United States v. Cothern, 8 USCMA 158, 161, 23 CMR 382,
385 (1957), where Judge Ferguson wrote :
An absence of seventeen days, or seventeen months, or seventeen years, is only an absence-though its probative value may be great-and it is not a sub- stitute for intent. The court-martial must consider the intent of the accused.

It should be noted that in Cothern, and the cases subsequent thereto, the Court never held that prolonged absence was not sufficient to raise an inference of intent to remain absent permanently. What was condemned in Cothern was an instruction that appeared almost to require a court-martial to conclude from that fact alone that an accused had the requisite intent, irrespective of the other facts and circumstances of the case. In regard to the deletion of “no satisfactory explanation of it” in reference to the prolonged absence in the former first sentence of this section, see United States v. Soccio, 8 USCMA 477, 24 CMR 287 (1957), where error was found because the instruction had the effect of shifting the burden of proof to the accused.
Also, in the second paragraph of this section, the last circumstance listed in the first sentence is new. See the first paragraph of this discus- sion of 164a.
Absence without leave. The former last sentence of the first para-graph was broken into two sentences which were transposed with the former next to the last sentence of this paragraph. In the present last sentence, “knew or had reasonable cause to know” was substituted for “has actual or constructive knowledge.” This was an editorial change, not a recognition of change in the substantive law.
In the first Proof paragraph, element (b), “that the accused knew or had reasonable cause to know of that time and place” ; was inserted. This offense can be committed through negligence in not knowing of the duty to be at a certain place at a certain time; and it is a general intent offense. See United States v. Scheunemann, 14 USCMA 479, 34 CMR 259 (1964) ; ACM S-14446, Gilbert, 23 CMR 914 (1957).
Missing movement. No change was made in the first four paragraphs. In regard to the third and fourth paragraphs, see United States v. Thompson, 2 USCMA 460,9 CMR 90 (1953).
The Proof section was rewritten. The substance of the former section was incorporated and matter was added in element (b) as follows: “that the accused knew or had reasonable cause to know of the prospective movement of this ship, aircraft, or unit.” This should emphasize that lack of actual knowledge of a movement is no defense when the accused was at fault in not knowing of the movement, for example, when he failed in a duty to check with his orderly room concerning a possible movement and had he done so he would have received actual knowledge of the m.ovement. See United States v. Scheunemann, supra. Both Article 86(3) and Article 87 use the words “he is required” ;and the rationale in Scheunemann, that AWOL may be committed by negligence because a mistake of fact must be both honest and reasonable to constitute a defense, should apply to the offense of missing movement. Also see United States v. Jones, 1 USCMA 276,3 CMR 10 (1952).
Disrespect toward a superior commissioned officer. The fifth para- graph formerly read as follows: “If the accused did not know that the
168

AGO 20081A
the manner of determining the legality of an order. See United States v. Carson, 15 USCMA 407, 35 CMR 379 (1965). In the Proof, the same elements were added as in 170b. See the comment on 170b.
Treaty with contempt or being disrespectful in language or deportment toward a warrant officer, noncommissioned officer, or petty officer. In the Proof, the same elements were added as in 170b.
Violation or failure to obey a lawful general order or regulation. The first sentence is a rewrite of the former second sentence, which stated as follows: “A general order or regulation is one which is promulgated by the authority of a Secretary of a Department and which applies generally to an armed force, or one promulgated by a commander which applies generally to his command.” General and flag officers in command and all general court-martial convening authorities are now included within the category of commanders empowered to issue lawful general orders or regulations. Present decisions concerning the authority of a commander to issue a general order or regulation are based on determinations utilizing tests which require the presentation of evidence as to whether the commander occupies a “substantial position” in effect- ing the mission of the service (United States v. Brown, 8 USCMA 516, 25 Department of the Army level” (United States v. Porter; 11USCMA 170, 28 CMR 394 (1960)), whether the unit commanded is a “post, ship, or station” (United States v. Arnovits, 3 USCMA 538, 13 CMR 94 (1953) ; (United States v. Wade, 1USCMA 459, 4 CMR 51 (1952) ; United States
v.
Snyder, 1USCMA 423, 4 CMR 15 (1952) ), whether the commander is a general officer or officer of flag rank, and whether he exercises general court-martial jurisdiction (United States v. Porter, supra). The result of these decisions has been to “. . . compound the confusion already rampant” (United States v. Porter, 11 USCMA 170, 175, 28 CMR 394, 399 (1960) (dissenting opinion, Ferguson, J.). See also United States

v.
Chunn, 15 USCMA 550, 36 CMR 48 (1965), where the Court held that the evidence indicated that the United States Naval Base, Subic Bay, Republic of the Phillipines, occupied such a position of substance and importance in effecting the mission of the Naval establishment in the Paci,fic area as to conclude that its commander possessed authority to issue general orders. Among other things, the commander exercised gen- eral court-martial jurisdiction.

Although general or flag rank and the authority to convene general courts-martial have been considered only as indications that the com-mander is empowered to issue a lawful general order (United States v. Porter, 11USCMA 170, 28 CMR 394 (1960) ; United States v. Ochoa, 10 USCMA 602, 604, 28 CMR 168, 170 (1959)), the determination by the President in this revision, acting within his Constitutional powers as Commander-in-Chief (see U.S.C. §§ 3061, 6011, 8061 (1964)), that any general or flag officer in command and any commander authorized to convene general courts-martial, and authorities superior to them, may issue general orders and regulations obviates the difficulties in applying the present tests and provides a workable criterion. The Court of Mili- tary Appeals has never held that a general or flag officer in command or a general court-martial convening authority could not promulgate a general order, although it has indicated that the commander’s status is not neces- sarily controlling. A Presidential declaration that all general and flag
AGO 20081A

Pam 27-2
Paragraph

officers in command and all commanders empowered to convene general courts-martial, and their superiors, may promulgate general orders is also within the President’s power to make regulations to spell out the details and implement the statutory provisions of Article 92(1) and is consistent with the Court’s opinions. See Hampton, Jr. and Co. v. United States, 276
U.S. 394 (1928). In view of the necessity for organizational changes to take advantage of swift technological advances and changing strategic and logistical concepts, the level or authority to issue general orders or regulations should not be solely tied to Secretarial status or the exercise of general court-martial jurisdiction, since a number of commands com- manded by general or flag officers, although important and sometimes being unified or joint commands, will not require this jurisdiction but will require the authority to issue general orders or regulations.
The second sentence, which deals with when a general order termi- nated, is new. The third sentence is substantially the same as the former first sentence; and, because of this sentence, the former last paragraph as deleted was being redundant. It read as follows: “A general order or regulation is presumed to be lawful.” The next to last (see United States
v. Carson, 15 USCMA 407, 35 CMR 379 (1965)) and last sentences are also new.
In (b) of the Proof, “that the accused had a duty to obey it” is new. However, this was implied in the former (b),which is now (c);therefore no change of substance was made.
Failure to obey other lawful order. The first paragraph was modified by implementing the holding in Uniteid States v. Curtin, 9 USMCA 427, 26 CMR 207 (1958), that proof of actual knowledge is required for an Article 92 (2) violation.
The second paragraph was transposed with the Proof so that the Proof is now at the end of the subparagraph.
Mutiny. The first three sentences were substituted for the former first sentence to more clearly delineate the two types of mutiny under Article 94(a) (1). See United States v. Woolbright, 12 USCMA 450, 31 1 CMR 36 (1961) ; United States v. Duggan, 4 USCMA 396, 15 CMR 396 (1954). I
I

Breach of arrest. The former first sentence was deleted. It read as
follows: “Arrest officially imposed is presumed to be legal.” This sentence actually meant that arrest officially imposed could be inferred to be legal. I Inferences are to be used by fact finders as an aid in arriving at conclu- I sions and not by the law officer in deciding legal issues. In view of the holding in the Carson Case, supra, that the legality of an act is usually to be decided as a question of law by the law officer, the sentence to this extent has no significance. Even in those cases when there is a factual issue as to the legality to be decided by the members of the court, there would under those circumstances be no inference of legality. The state- ment therefore is meaningless.
Consideration was given to deleting the word “duly” from the Proof section because of the Carson case, especially in view of the propensity of presidents of special courts-martial and even law officers to use this sec- tion of the Manual to draft instructions. However, it was decided to retain the word because the prosecution does have to prove that the restraint
AGO 20081A

Paragraph
was “duly” imposed or accomplished. Presidents and law officers, how- ever, should not follow the Proof section mechanically in drafting instruc- tions.
Escape from confinement. The former second sentence was deleted. It read as follows: “Confinement officially imposed is presumed to be legal.” See the discussion above as to a similar change in 174b.
Escape from custody. The former second sentence was deleted. It read as follows: “Custody officially imposed is presumed to be legal.” See the discussion above as to a similar change in 174b.
Unlawful detention of another. Tfie former third sentence of the second paragraph was deleted as it was considered unnecessary to give examples of places where an offense can be committed when it is capable of being committed anywhere. It read as follows: “The restraint may be in a guardhouse or in a brig, in a house, or in a public street.”
Unnecessary delay in disposing of case. In (a) of the Proof “to his knowledge” was inserted to treat kn,owledge as an element, not the lack thereof as a defense.
Running away before the enemy. The last two sentences of the first paragraph and (e) of the Proof are new. See United States v. Parker, 3 USCMA 541,13 CMR 97 (1953).
Cowardly conduct. In the Proof, (c) is new and adds the requirement of fear. United States v. Soukup, 2 USCMA 141,7 CMR 17 (1953).
Striking the colors or flag. The second paragraph was transposed with the Proof so that the Proof would be the last paragraph.
Failing to secure capture enemy property. The former second para- graph, which set forth the standard of a reasonable prudent man, was deleted as erroneously conflicting with the’standard in the first para-graph. If this paragraph were retained, it would be implicit in its reten- tion that a person was not required to do what could reasonably be expected of him. There is no reason to read the article as requiring more or less than can be reasonably expected of a person. A person with extraordinary ability, experience, power, and intelligence must take “steps” which could reasonably be expected of him, not just “steps” that “a reasonably prudent man” acting in the same capacity would take. Accordingly in (b) of the Proof, “that the accused failed to do what was reasonable under the circumstances to secure this property for the service of the United States,” was substituted for a failure of the accused “to perform the responsibilities of a reasonably prudent man. …”
Harboring or protecting the enemy; communicating, corresponding or holdiqg intercourse with the enemy. The conclusion that a conviction under Article 104(2) may be based on constructive knowledge was elimi- nated. Article 104(2) requires actual knowledge as it reads “knowingly.”
Spies. The former second sentence of the third paragraph read as follows: “This intent will very readily be inferred on proof of a deceptive insinuation of the accused among our forces, but this inference may be overcome by very clear evidence that the person had come within the lines for a comparatively innocent purpose, as to visit his family, or .to reach his own lines by assuming a disguise.” This sentence was rewritten so as not to shift the burden of proof to the accused.
AGO 20081A
Pam 27-2

Paragraph
to special pay for duty subject to hostile fire an increased punishment is authorized by the Table of Maximum Pnnishments.
Malingering. The last two sentences of the first paragraph are new. In regard to self-inflicted injuries by non-violent means such as starvation, see CM 413397, Belton, 36 CMR 602 (1966).

Riot. This subparagraph was rewritten to conform with the decision in United States v. Metcalf, 16 USCMA 153, 36 CMR 309 (1966). The Court in that decision criticized the discussion of riot in the 1951 Manual particularly for failing to set forth the requirement that the acts of the participants must cause public terror. The Court indicated that it pre- ferred the treatment of riot set forth in the 1949 Manual. Accordingly, the subparagraph is now based in large part on the 1949 Manual. In accord- ance with Metcalf it is provided that it is not necessary to have actual terror in the public at large but only that the conduct be calculated to cause alarm or terror. See also 2 Wharton, Criminal Law and Procedure, 8 864 (12th ed. 1957). The last two sentences of the discussion paragraph were taken from the 1951 Manual.
Breach of the peace. Although this subparagraph was not changed, it should be recognized that a breach of the peace may also be committed in a confinement facility. See United States v. Hewson, 13 USCMA 506, 33 CMR 38 (1963).
Provoking speeches or gestures. Although this paragraph was not changed, it should be recognized that knowledge that the victim was a person subject to the Code may be an issue in some cases. See United States v. Lacy, 10 USCMA 164, 27 CMR 238 (1959).
Murder in general. The second paragraph was formerly the last para- graph after Proof. The third paragraph is new. See United States v. Stokes, 6 USCMA 65, 19 CMR 191 (1955); United States v. Craig, 2 USCMA 650, 10 CMR 148 (1953); United States v. Roman, 1 USCMA 244,2 CMR 150 (1952).
Premeditation. This subparagraph was formerly 197d. However, the last sentence, which states the general rule, was substituted for the former next to last sentence which gave an illustration of the lack of premedita- tign and the former last sentence which gave an illustration of premedita- cion.
A separate Proof section was provided for this type of murder. It was adapted from the Proof section that previously followed 197g and covered all types of murder.
The material in the former 197b, which was entitled Justification, is covered in 216a and d. See comments on 216 a and d in Chapter XXIX.
Intent to kill or inflict great bodily harm. This subparagraph was formerly 197e. In the third and fourth sentences, “inferred” was substi- tuted for “presumed.” See United States v. Houghton, 13 USCMA 3, 32 CMR 3 (1962); United States v. Miller, 18 USCMA 33, 23 CMR 257 (1957).
A separate Proof section was provided for this type of murder. It was

adapted from the Proof section that previously followed 197g and covered
all types of murder.
AGO 20081A
Paragraph 199b
200a(6)
AGO 20081A

Carnul knowledge. In regard to ;tihe last sentence of the third para- graph which was retained, see United States v. Berry, 6 USCMA 609, 614, 20 CMR 325,330 (1956).
Taking, obtaining, or withholding. This subparagraph was expanded to clearly indicate the principle that a withholding may arise whether the property was lawfully or unlawfully acquired. See United States u. Sicleg, 6 USCMA 402, 20 CMR 118 (1955) where the Court stated that a fidu- ciary relationship is not essential to wrongful withholding; United Stat.es
v. O’Hara, 14 USCMA 167,33 CMR 379 (1963) holding that a withholding after a wrongful taking not accompanied by an intent to steal would constitute larceny if accompanied by the larcenous intent; and United States v. Kantner, 11USCMA 201, 29 CMR 17 (1960), apparently permit- ting conviction of a finder of lost property whose intent to steal occurred subsequent to the finding of the property. The revision also includes new material to the effect that a finding of larceny cannot be predicated solely on evidence which shows receipt of stolen property or that the accused was an accessory after the fact. United States v. Jones, 13 USCMA 635, 33 CMR 167 (1963) ;United States v. McFarland, 8 USCMA 42, 23 CMR 266 (1957).
Wrongfulness of the takitzg, obtaining, or withholding. The example in the fifth sentence was added and this subparagraph was changed to set forth with more clarity the discussion concerning the taking, obtaining, or withholding by an owner with intent to charge the person from whom the property is taken, obtained, or withheld with the value of the property. See Hall v. United States, 277 Fed. 19 (8th Cir. 1921) ;2 Wharton, Crimi- nal Law and Procedure 5 497 (12th ed. 1957).
In regard to this subparagraph, it should be recognized that knowl- edge of wrongfulness is the mens rea of lsrceny. See Morissette v. United States, 342 U.S. 246 (1952) ; United States v. Bridges, 12 USCMA 96, 30 CMR 96 (1961) ; United States v. Sicley, 6 USCMA 402, 20 CMR 118 (1955). The specific intent to steal and the mens rea are separate and different. See United States v. Keleher, 14 USCMA 125, 129, 33 CMR 337, 341 (1963). If the evidence raises an issue as to whether ‘a taking, obtain- ing, or withholding which was apparently wrongful in the sense of being without right, was done with knowledge of the wrongfulness, this knowl- edge then becomes a requirement of proof, and it is probably best to treat it as an element of the offense. This also is so with respect to wrongful appropriation.
False pretense. The former last sentence of the first paragraph was deleted. It read as follows :
For example, a person makes such a false pretense by uttering a check made by him if at the time of the uttering he did not honestly intend to have sufficient funds in the bank available to meet payment of the check upon its presentment for payment in due course.

The words, “such as giving a check, without intending that it shall be honored, in purported payment of a debt incurred in a past purchase of property and not thereby obtaining any money, personal property, or article of value,” were deleted from the last sentence of the second para- graph. Both of these deletions were previously made in the 1951 Manual by Exec. Order No. 11009,27 Fed. Reg. 2585 (1962).
Intent. The former first paragraph has been divided into two para- graphs, but the former last two sentences were deleted because of the
Pam 27-2
Paragraph

decision in United States v. Griffin, 9 USCMA 215, 25 CMR 477 (1958). Those sentences read as follows :
Consequently, a person may be guilty of larceny even though he intends to return the property ultimately, if the execution of that intent depends on a future condition or contingency which is not likely to happen within a reason-ably limited and definite period of time. Thus one may be found guilty of larceny who conceals the property of another with intent to retain it until a reward is offered for it, or who pawns the property of another without author- ity, intending to redeem it at an uncertain future date and then return it.
The last sentence of the next to last paragraph was deleted as it dealt with a matter of defense which is covered in general in 154a(4). The sentence read as follows :
Also, a person who takes, obtains, or withholds the property of another, believ- ing honestly and reasonably, although mistakenly, that he or the person for whom he is acting has a legal right to acquire or retain the property, is not guilty of an offense in violation of Article 121.
Also, this sentence was not a correct statement of the law. See, e.g., United States v. Rowan, 4 USCMA 430, 16 CMR 4 (1954).
The last sentence of the last paragraph is a new addition based on the decisions in United States v. Epperson, 10 USCMA 582, 28 CMR 148 (1959); United States v. Boudreau, 9 USCMA 286, 26 CMR 66 (1958) ; and United States v. Hayes, 8 USCMA 627,25 CMR 131 (1958).
Value. This is a new subtitle. The material herein as modified for- merly appeared in the two paragraphs after the Proof. The first para- graph is new and replaces a sentence which read as follows: “Items of government issue which were serviceable government property at the time they were stolen are deemed to have values equivalent to the prices there- for as listed in official publications or, if not so listed, as otherwise officially recognized.” See United States v. Thompson, 10 USCMA 45, 27 CMR 119 (1958) ;United States v. Thornton, 8 USCMA 57, 23 CMR 281 (1957).
Also, the following clause was deleted from the end of what is now the third sentence of the second paragraph: “or by the testimony of a person who has ascertained the price of similar articles by adequate in- quiry in the market involved.” This has been held to be hearsay evidence. See CM 366778, Bills, 13 CMR 407,412-413 (1953).
Miscellaneous. This subparagraph was formerly designated 200a(7).
Robbery. In the fifth paragraph, all after the second sentence is new. See United States v. King, 10 USCMA 465, 28 CMR 31 (1959) ; United States v. Calhoun, 5 USCMA 428, 18 CMR 52 (1955) ; United States v. Ransom, 4 USCMA 195, 15 CMR 195 (1954) ; United States v. McVey, 4 USCMA 167,15 CMR 167 (1954).
Forgery. A primary change was in the first sentence of the sixth paragraph. In this sentence the words “or from extrinsic facts” were inserted; and the sentence now reads as follows :
With respect to the apparent legal efficacy of the writing falsely made or altered, the writing must appear either on its face or from extrinsic facts to impose a legal liability on another, or to change a legal right or liability to the prejudice of another.
The essence of the legal efficacy requirement is that the writing must have the capability of use as in instrument to defraud. This capability appears on the face of certain writings such as in the examples in the fifth paragraph. But, where the false writing is a letter of introduc-
AGO 20081A
Pam 27-2

Paragraph
tion or an insurance application that does not give notice on its face by fair implication of how it could be used as an instrument to defraud, this must be alleged for the specification to state an offense. See United States
v. Farley, 11USCMA 730, 29 CMR 546 (1960). For this reason, the word “mere” before “letter of introduction” in the third sentence is not surplus- age as a letter is not a “mere letter’ if extrinsic facts are alleged showing how it was intended to be and could be used as an instrument to defraud.
The last sentence of the seventh paragraph is a new addition based on United States v. Showalter, 15 USCMA 410, 35 CMR 382 (1965).
Although not mentioned in the text; it should be noted that in United States v. Gibbons, 11USCMA 246,29 CMR 62 (1960), forgery and uttering were held to be separate criminal acts and specifications of falsely making a signature on a check and uttering it the same day were not multiplicious for sentence purposes.
Making, drawing, or uttering check, draft, or order without sufficient funds. This paragraph is the same as that which was added to the 1951 Manual as 202a by Exec. Order No. 11009, 27 Fed. Reg. 2585 (1962), except that the next to last paragraph before the Prrof was added. As to this addition, see United States v. Bowling, 14 USCMA 166, 33 CMR 378 (1963) ; United States v. Margelony, 14 USCMA 55, 33 CMR 267 (1963).
The capital “A” was used in the designation of this paragraph to avoid the erroneous suggestion that it was a subparagraph of 202,
Maiming. The third and fourth sentences of the third paragraph are new. They were inserted in recognition that the requisite intent may be an intent to injure the victim, without specifically intending to commit the resulting disablement or disfigurement. See United States v. Hicks, 6 USCMA 621, 20 CMR 337 (1956).
Sodomy. In the Proof, (b) is a new addition. This addition to the Proof was made in view of the change to the Table of Maximum Punishments authorizing increased punishment when this crime is committed by force without consent or with a child under 16. See the discussion of changes in the Table of Maximum Punishments in chapter XXV as to Article 125.
~ssault. Throughout this subparagraph, “apprehend” or “apprehen-sion,” as appropriate, was substituted for “fear:” See United States v. Norton, 1USCMA 411, 414, 4 CMR 3, 6 (1952).
The former last sentence of the last paragraph, dealing with self- defense, was replaced by a cross reference in 216c where self-defense is now covered. The former sentence incorrectly stated the principle as to the amount of force that could be used in self-defense. See the discussion of the content of 216c in chapter XXIX.
Assaults permitting increased punishment based on. status of victim. This entire subparagraph is new. In 207b (1) and (2), knowledge of the victim’s status is treated as an element instead of the lack thereof as a defense. This is consistent with the treatment of knowledge in regard to offenses under articles 89,90, and 91.
As to the reason for including these assaults as Article 128 offenses rather than Article 134 offenses, see United States v. Ragan, 14 .USCMA 119,123,33 CMR 331,335 (1963) ;United States v. McCormick, 12 USCMA 26,30 CMR 26 (1960) (concurring opinion, Latimer, J.).
AGO 20081A
Pam 27-2
Paragraph

207c Aggravated assault. This subparagraph was 207b in the former
Manual.

Assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm. In the title, the words after “weapon” were added to reflect the statutory language in Article 128 (b) (1). The third sentence of the first paragraph was added because of the holding in &ted States v. Vigil,3 USCMA 474, 13 CMR 30 (1953) that fists may be a means likely to produce grievous bodily harm.
Assault inwhich grievous bodily harm is intentionally inflicted. In the last sentence of the second paragraph, “was a foreseeable consequence of the blow with the fist so” was deleted in favor of “occurred under such circumstances” as Article 119(b) (2) does not have a foreseeability requirement.
Burglary. The first sentence of the first paragraph was modified to exclude Article 123a. This change was made in the 1951 Manual by Exec. Order No. 11009, 27 Fed. Reg. 2585 (1962). The last two sentences of the first paragraph are new. See United States v. Kluttx, 9 USCMA 20, 25 CMR 282 (1958).
In the last paragraph before the Proof, the second sentence was added on the basis of United States v. Lovig, 15 USCMA 69, 35 CMR 41 (1964).
Housebreaking. The second sentence of the first paragraph was added on the basis of United States v. William, 4 USCMA 241, 15 CMR 241 (1954).
Perjury. The first sentence of the second paragraph was modified to stress that the false testimony must be willfully given. See United States
v. McCarthy, 11USCMA 758 29 CMR 574 (1960).
In the last clause of the sentence which composes the fourth paragraph, “unless he was forced to answer over a valid claim of privilege” was substituted for “even if he was forced to answer over his claim of privilege.” See United States v. Price, 37 USCMA 590, 23 CMR 54 (1957), where it was held that Article 31 is relevant to all pretrial statements in violation
I

of its terms and the fact that the statement or answer requested is an
I

official statement within the meaning of Article 107 does not restrict the protection of Article 31.
I

The last two sentences of the fifth paragraph are new, and they read as follows: “Whether the allegedly false testimony was with respect to I a material matter is a question of law to be determined as an interlocutory I question. See 57b.” See Harrell v. United States, 220 I?. 2d 516 (5th Cir. 1955) ;Dolan v. United States, 218 F. 2d 454 (8th Cir. 1955) ;CM 393094, Martin, 23 CMR 437 (1956).
The first sentence of the seventh paragraph was changed to provide that circumstantial evidence alone may be sufficient to prove the falsity of the allegedly perjured statement with respect to matters which by their nature are not susceptible of direct proof. This is based on United States v. Walker, 6 USCMA 158, 19 CMUR 284 (1955). In that case, Chief Judge Quinn, speaking for the Court, traced the history of the common law requirement that the falsity of an.oath must be established by the positive testimony of two witnesses or by one witness corroborated by other evidence and that circumstantial evidence is insufficient. He pointed out that the modern
AGO 20081A
Pam 27-2

Paragraph
trend is that perjury may be proved by circumstantial evidence and that the military rule follows this modern trend as evidenced by that portion of paragraph 210 of the Manual, providing that a witness may commit perjury by testifying that he knows a thing to be true when in fact he either knows nothing about it at all or is not sure about it. That is to say, the truth or falsity of testimony that the accused did not see the acts in question is by its very nature not susceptible of direct proof but only by circumstantial evidence. The Court, accordingly, held that the evidence in the case, although only circumstantial as to the falsity of the statement’ was sufficient. Although Chief Judge Quinn did not specifically limit the thrust of the case to those matters which are by their nature not susceptible of direct proof, Judge 13rosman in a concurring opinion would so limit the decision and would require the Government to go beyond circumstantial evidence with respect to matters which are susceptible of proof by direct evidence. That is the position adopted in the sentence as changed. United States v. Guerra, 13 USCMA 463, 32 CMR 463 (1963), is not contrary to this position. Although the Court talks there in terms of the necessity for testimony of at least one witness directly contradictory to the accused’s former testimony and states that circumstantial evidence alone would not suffice, it does not appear that the Court intended to overrule Walker. Rather it seems to have adopted Judge Brosman’s rationale in Walker because in Guerra the question in issue, whether a larceny had in fact been committed, could be proven directly. Accordingly, the addition to the Manual is consistent with Guerra. Other than the exceptional case relating to matter which can be proved only by circumstantial evidence, the testimony of a single witness must not only be corroborated but must “directly contradict the accused’s statement,” and it is not sufficient if the falsity must be inferred from his testimony. United States v. Guerra, supra. This language, therefore, has been included in the first sentence of the seventh paragraph.
The last sentence of the seventh paragraph was deleted as surplusage. It read as follows: “In such a case, it may be inferred that the accused did not believe the allegedly perjured statement to be true.”
The eighth paragraph is new. See United States v. Guerra, sup~a.

The Proof was transposed to the end of the paragraph and “(f) that the testimony was false” was added thereto. See United States v. Guerra, supra; United States v. McCarthy, supra.
Making a false or fraudulent claim. The last two sentences of the second paragraph are new. They were added to make clear that the mere writing of a document in the form of a claim is not a violation of Article 132(1) (A) and that something must be done to place the document in official channels. See United States v. Steele, 2 USCMA 379, 9 CMR 9 (1953).
The next to the last sentence of the former second paragraph was deleted in view of the holding in United States v. Walters, 10 USCMA 598, 28 CMR 164 (1959), that actual knowledge of the falsity of the claim is required. This sentence read as follows:
However, if it appears that a false claim was made under circumstances which would cause the false character of the claim to be apparent to an ordinary prudent man, it may be assumed that the claim was made with knowledge of its falsity.

AGO 20081A
Pam 27-2
Paragraph

In (a) of the Proof, “or an officer thereof” was inserted after “the United States” to conform with Article 132(1) (A), and (d) in the former Manual, which read “the amount involved as alleged,” was deleted as not relevant to the offense or the punishment provided therefor.
Presenting fw approval or payment a false or fraudulent claim. The former third paragraph was deleted because it presented a highly unusual situation. It gave as an example of this offense the presentation by an officer of a second account for payment covering the same period as an account which he previously assigned and which could be collected upon by the assignee.
In the Proof, the same changes were made as are discussed in the last paragraph under 211a, above.
Making or using a false writing or other paper in connection with claims. In the Proof, the same changes were made as are discussed in the last paragraph under 211a, above, but they were made as to (d) and (e), respective1 y.
Making or delivering receipt without having full knowledge that it is true. The last clause of the last sentence of the first paragraph was rewritten as an inference to avoid use of the term “prima facie evidence.” This term might be erroneously taken as implying that an accused could be properly convicted on “prima facie evidence” of an intent to defraud without a finding that the element actually existed.
Conduct unbecoming an officer and a gentleman. The paragraph im- mediately before the Proof is a new addition, and (b) of the Proof was , modified to require proof that the act or omission constitutes conduct unbecorriing an officer and gentleman. See United States v. Welch, 1 USCMA 402,3 CMR 136 (1952).
General as to the general article. This subparagraph is new. It sets forth the proposition that the first two clauses of Article 134 are not I necessarily mutually exclusive,’ that the specification need not allege which clause the conduct violates, and that conduct which falls short of establish- I ing a crime or offense not capital may still constitute an offense under one I of the other clauses. See United States v. Williams, 8 USCMA 325, 24 CMR 135 (1957) ; United States v. HoZt, 7 USCMA 617, 23 CMR 81 I (1957) ;United States v. Herndon, 1USCMA 461 4, CMR 53 (1952). I
Disorders and neglects to the prejudice of good order and discipline in the armed forces. This subparagraph was formerly 213a.
The last paragraph was expanded to include use, and the third sent- ence was modified by substituting lack of knowledge for accident or mis- take as an example of innocent possession or use. See United States u. Greenwood, 6 USCMA 209, 19 CMR 335 (1955). The second sentence of this paragraph was restated as an inference rather than a presumption. See the discussion of 138a (chapter XXVII), supra. The last sentence of this paragraph is a new addition which is based on United States v. West, 15 USCMA 3, 34 CMR 449 (1964). See also the second paragraph of the discussion of 200a(4), supra.
AGO 20081A
Pam 27-2

Paragraph
213c
213f (4)
AGO 20081A
The former Proof section was deleted at the end of this subparagraph as the matter of proof is now covered in the new subparagraph d.
Conduct of a nature to bring discredit upon the armed service. This subparagraph was formerly 213b, but it was substantially revised. The second sentence is new. Actual injury to the reputation of the armed f’orces is. not required. ,See United States v. Hooper, 9 USCMA 637, 647, 26 CMR 417, 427 (1958); United States v. Berry, 6 USCMA 609, 614, 20 CMR 325, 330 (1956) ;United States v. Thompson, 3 USCMA 620, 624, 14 CMR 38, 42 (1954). The last sentence, which gives examples of conduct prescribed by the second clause of Article 134, is new.
The last paragraph of the former 213b was deleted. It addressed itself to the subject of dishonorably failing to pay debts, which is now covered by 213f (7).
The former Proof section was deleted at the end of this subparagraph as the matter of proof is now covered in the new subparagraph d.
General requirements of proof under Article 134. This subparagraph is new. It was inserted to emphasize that conduct puniahiable under the first two clauses of Article 134, in all cases, must be prejudicial to good order and discipline or of a nature to bring discredit. See United States v. Gittens, 8 USCMA 673, 25 CMR 177 (1958) ;United States v. Williams, 8 USCMA 325, 24 CMR 135 (1957) ;United States v. Grosso, 7 USCMA 566, 23 CMR 30 (1957). Accordingly, this requirement was added to the Proof sections in subparagraph 213f (formerly 213d).
Crimes and offenses not capital. This subpbnagraph wm fom~evly213c. The last sentence of subparagraph (1) is a new addition.
Various types of oflenses under Article 134. This subparagraph was formerly 213d. See the above discussion of 213d concerning an addition to the Proof sections.
Assaults involving intent to commit certain offenses of a civil nature. To emphasize ‘that the offenses in the ,subpulagraphs heiein requi~e a specific intent, changes have been made throughout to indicate that these assaults must be committed with the appropriate specific intent. The first sentence of subparagraph (a) was changed to provide that there is a specific intent to kill for assault with intent to murder. United States v. Holman, 3 USCMA 396, 12 CMR 152 (1953). A similar change was made in the first sentence of subparagraph (b) based on United States v. Pitts, 12 USCMA 634, 31 CMR 220 (1962). These two changes were also incor- porated into (b) of the Proof section.
Iwdecent acts with a child under the age of 16 years. The first sent- ence of the first paragraph was changed to provide that the required intent is a specific intent. The second and third sentences were added to this paragraph to provide that although the indecent liberties must be taken in the physical presence of the child (United States v. Knowles, 15 USCMA 404, 35 CMR 376 (1965)), it is not essential that there be a physical touching of t!he child (United States v. Brown, 3 USCMA 454, 13 CMR 10 (1953) ).
False swearing. The first part of the first paragraph was modified in accordance with United States v. Smith, 9 USCMA 236, 26 CMR 16

Pam 27-2
Paragraph

(1958), which held that the offense of false swearing does not extend to falsehoods stated under oath in a judicial proceeding or course of justice an,d that false swearing is not a lesser included offense of perjury. Accordingly, this modification was also made in the Proof. Additionally, in (e) of the Proof, the requirement that the statement be false was added. United States v. McCarthy, 11USCMA 758, 29 CMR 574 (1960).
Dishonorable failure to pay debts. This offense was in 213b, but the discussion herein is almost entirely new. See United States v. Richardson, 15 USCMA 400, 35 CMR 372 (1965) ; United States v. Schneiderman, 12 USCMA 494, 31 CMR 80 (1961); Unit~d States v. Cummins, 9 USCMA 669, 26 CMR 449 (1958) ; United States v. Kirksey, 6 USCMA 556, 20 CMR 272 (1955).
Dishonorable failure to maintain funds for payment of checks. This subparagraph is new. See United States v. Bowling, 14 USCMA 166, 33 CMR 378 (1963) ; United States v. Margelony, 14 USCMA 55 33 CMR 267 (1963) ; United States v. Groom, 12 USCMA 11,30 CMR 11 (1960) ; United States v. Kirksey, 6 USCMA 556,20 CMR 272 (1955).
Bigamy. This subparagraph is new. See United States v. McCluskey, 6 USCMA 545,20 CMR 261 (1955).
Communicating a threat. This subparagraph is new. See United States v. Gilluly, 13 USCMA 458, 32 CMR 458 (1963) ; United States v. Frayer, 11USCMA 600, 29 CMR 416 (1960); United States v. Jenkins, 9 USCU 381, 26 CMR 161 (1958) ;United States v. Humphrys, 7 USCMA 306, 22 CMR 96 (1956) ;United States v. Holiday, 4 USCMA 454, 16 CMR 28 (1954).
False and unauthorized passes, permits, discharge certificates, and identification cards. This subparagraph is new. See United States v. Blue, 5 USCMA 550, 13 CMR 106 (1953). See also the remarks regarding these offenses in the discussion of changes in the Table of Maximum Punish- ments (chapter XXV) .
Negligent homicide. This subparagraph is new. See United States v. Greenfeather, 13 USCMA 151, 32 CMR 151 (1962); United States v. Russell, 3 USCMA 696, 14 CMR 114 (1954) ; United States v. Kirchner, 1 USCMA 477, 4 CMR 69 (1952); ACM 17272; Tomlin, 30 CMR 933 (1961).
Offenses against correctional custody. This subparagraph is new, but the substance of the first two sentences of the first paragraph was taken from subparagraph 131c(4) of Chapter XXVI as amended by Exec. Order No. 11081, 28 Fed. Reg. 945 (1963). See also United States v. Carson, 15 USCMA 407,35 CMR 379 (1965).
Regarding the inclusion of (a) in each of the Proof sections, see the second paragraph of the discussion of 174b herein.
Knowledge was not included in these Proof sections as these offenses are similar to Article 95 offenses which have no requirement of knowl- edge. See 174. However, lack of knowledge may be an affimtive defense.
AGO 20081A
Pam 27-2

Paragraph
213f (14) Receiving stolen property. This subparagraph is new. See United States v. Ford, 12 USCMA 3, 30 CMR 3 (1960) ; United States v. Hem-don, 1USCMA 461,4 CMR 53 (1952).
AGO 20081A

CHAPTER 29
MATTERS OF DEFENSE

Paragraph Redesignation of chapter. This chapter formerly dealt with the sub- ject of habeas corpus. All of the former material was deleted and replaced by material dealing with matters of defense. The subject of habeas corpus was considered inappropriate for the Manual because it dealt with the writ las a civilian court process rather than as a court-martial process. Of course, it is now only in the embryonic stage .asa coart-martial matter. Also, it was felt that habeas corpus details were more appropriate mat- ters for administrative regulations.
This new chapter was designed to include in one place, with certain exceptions, the substantive rules with respect to various matters of de- fense which may be raised at a trial by court-martial. A good deal of this material was formerly in chapters XI1 and XXVIII. Procedural aspects governing motions are still located in chapter XII.
General. This paragraph sets forth the general rules with respect to the effect of motions in bar of trial and special defenses. Except in the case of a motion raising the question of the accused’s mental responsibil- ity at the time of the alleged offense, motions in bar do not normally go to the issue of the guilt or innocence of the accused. But sea 57b and 67e, which provide that when motions to dismiss raise contested issues of fact which properly should be considered by the members of the court in their determination of guilt or innocence, those issues must be decided by the members.
Special or affirmative defenses, on the other hand, go to the guilt or innocence of the accused. A special defense is distinguished from a denial by the accused that he committed the acts in question and from cases in which the accused in essence defends by contending that the prosecution has failed to meet its burden of proving his guilt beyond a reasonable doubt. Of course, if the prosecution fails to introduce sufficient evidence (see 71a), a motion for a finding of not guilty should be granted. Even when the prosecution’s evidence is sufficient to withstand a motion for a finding of not guilty, the accused may defend by contending that the prosecution has not established his guilt beyond a reasonable doubt. The accused, of course, may adopt this approach without raising any special defenses. He may also raise a defense which does not amount to a special defense, as alibi or mistaken identity. Here the defense does not contend that an offense was not committed but rather contends that the prosecu- tion has not established beyond a reasonable doubt that the accused com- mitted the offense, either because he was not at the scene of the crime (alibi) or that somebody else committed the offense (mistaken identity). Although alibi is not an affirmative defense, the Court of Military Appeals has held that a special instruction, when requested, must be given if alibi is in issue. See United States v. Moore, 15 USCMA 345, 35 CMR 317 (1965).
AGO 20081A

Pam 27-2

Paragraph trwty limitation applicable ~IOcourtsmartial following a trial in a, foreign court.
The last paragraph was formerly the fifth paragraph of 68d.

Former punishment. This subparagraph was adapted from 68g of the Manual without substantive change. The reference to Article 13 punish- ment has been included because of the decision in United States v. Wil-liams, 10 USCMA 615,28 CMR 181 (1959). Inview of the more liberal and flexible definition of “minor offenses” in 128b, no examples of minor offenses are included.
Statute of limitations. A major part of the substance of this subpara- graph was moved from 68c. See the comments on 68c.
A discussion of what is “war” within the meaning of Article 43 was intentionally omitted. This can be an operative fact relative to the appli- cation of the statute of limitations. The existence, beginning, and ending of a “war” within the meaning of Article 43 is a factual matter which is not dependent on a formal declaration. United States v. Shell, 7 USCMA 646, 23 lCMR 11(1957) ;United States v. Ayers, 4 USCMA 220, 15 CMR 220 (1954) ; United States v. Bancroft, 3 USCMA 3, 11 CMR 3 (1953). Attention is called to the dissent by the Chief Judge in the Ayers and Shell cases on the ground that the Korean War did not produce a time of war within the United States within the meaning of Article 43.
In the second paragraph in regard to the reference of the applicabil- ity of the statute of limitations to the crime of conspiracy, see United States v. Rhodes, 11 USCMA 735, 29 CMR 551 (1960). The cautionary material in the latter part of the second paragraph, which deals with altering of charges after the period of limitations has run, is new. See United States v. Spann, 10 USCMA 410, 27 CMR 484 (1959) ; United States v. French, 9 USCMA 57, 25 CMR 319 (1958) ; United States v. Rodgers, 8USCMA 226,24 CMR 36 (1957).
Speedy trial. This subparagraph is new. The following cases were considered in drafting it: United States v. Williams, 16 USCMA 589, 37 CMR 209 (1967) ; United States v. Tibbs, 15 USCMA 350, 35 CMR 322 (1965); United States v. Schalck, 14 USCMA 371, 34 CMR 151 (1964); United States v. Williams, 12 USCMA 81, 30 CMR 81 (1961); United States v. Batson, 12 USCMA 48, 30 CMR 48 (1960) ; United States v. Davis, 11USCMA 410, 29 CMR 226 (1960); United States v.Brown, 10 USCMA 498, 28 CMR 64 (1959); United States v. Wilson, 10 USCMA 398, 27 CMR 472 (1959) ; United States v. Callahan, 10 USCMA 156, 27 CMR 230 (1959); United States v. Hounshell, 7 USCMA 321 CMR 1.29 (1956).
Justification as a special defense. This subparagraph was adapted from 197b of the former Manual. The scope was enlarged to include “death, injury or other act.”
Excuse of accident or misadventure. The defense of accident or mis- adventure generally arises in connection with a case involving a homicide or assault. See, e.g., United States v. Sandoval, 4 USCMA 61, 15 CMR 61 (1954) ; United States v. Bull, 3 USCMA 635, 14 CMR 53 (1954) ; and 197c (homicide) and 207a (assault) of the former Manual. However, the defense is not limited to crimes which involve death or injury. This was recognized by including the words “other event.” The target of a defense of accident or misadventure is to negate th,e criminality of the act
AGO 20081A
Paragraph
216g Physical or financial inability. The discussion in this subparagraph is
based on the decisions in United States v. Pinkston, 6 USCMA 700, 21
CMR 22 (1956);United States v. King, 5 USCMA 3, 17 CMR 3 (1954) ;
and United States v. Heims, 3USCMA 418,12CMR 174 (1953).

AGO 20081A

GENERAL DISCUSSION OF CHANGES IN APPENDICES
Generally, those appendices for which there is a published Department of Defense Form were modified to agree with the latest edition of those forms.
Former Appendix 18, Interrogatories and Deposition, and former Appendix 19, warrant of At-tachment, were deleted. They were deleted as it was felt that their inclusion in the Manual was not warranted because of their infrequent use. However, it is planned that these forms will remain avail- able through normal publication channels.
AGO 20081A

APPENDIX 1
CONSTITUTION OF THE UNITED STATES

Amendments XXII, XXIII, XXIV, and XXV were added.

AGO 20081A
APPENDIX 2

THE UNIFORM CODE OF MILITARY JUSTICE
The Uniform Code of Military Justice as revised, codified, and enacted into law as part of title 10, United States Code, by the act of 10 August 1956, with subsequent amendments designated in the text as explained in the firsit paragraph of appendix 2, was substituted for the Code which was enacted as part of bhe act of 5 May 1950 land wtu set forth in appendix 2, MCM, 1951.
The note after Article 2(10) was retained as containing information of value. The notes after Article 2 (11) and Article 3(a) are new.
APPENDIX 3
STATUTES TO WHICH MILITARY PERSONNEL SHOULD HAVE READY ACCESS

The material in this appendix was substituted for the former anaterial which was under the title
Punishment Under Article 15-Nonjudicial Punishment Forms.
AGO 20081A
APPENDIX 4
FORMS FOR ORDERS CONVENING COURTS-MARTIAL

Sample convening orders were changed to conform to the new requirements of Art. 26(c) and to recognize the possibility of an MJ being detailed to an SPCM.
AGO 20081A
APPENDIX 5
CHARGE SHEET

This appendix was modified by substituting, with minor modifications therein, the form currently in use, Department of Defense Form 458, October 1969. Page four of the charge sheet was modified to conform with amended Article 20.
AGO 20081A
Pam 27-2

Specification No.:
47
63
APPENDIX 6

FORMS FOR CHARGES AND SPECIFICATION
Instructions (6a). Paragraphs 13and 14 were added to furnish guid- ance as to the proper method of describing property and the acceptable methods of pleading documents. As to %he latter, see United States v. Lawrence, 3 USCMA 628, 14 CMR 46 (1954) ;United States v. Bunch, 3 USCMA 186,ll CMR 186 (1953).
Forms for specifications (6b); The word “about” was placed in par- entheses throughout when used to describe value or amount. This was done to conform with the instructions in paragraph 11 of 6a that the exact value or amount should be stated in the specification if known. Significant changes in the various specifications are hereafter discussed individually. Specification numbers which are not in parentheses refer to numerical designations in this Manual. Numbers in parentheses indicate the number assigned in the 1951 Manual.
Desertion by reenlistment, etc. (Art. 85). Deleted in view bf the decision in United States v. Huff, 7 USCMA 247,22 CMR 37 (1956).
Violating other written order or regulation (Art. 92(2) ). This is a new addition which was added to provide a form for pleading violations of ,written orders which are not general orders under Article 92(1). Con- cerning the necessity for this form, see, e.g., United States v. Keeler, 10 USCMA 319, 27 CMR 393 (1959); United States v. Brown, 8 USCMA 516,25 CMR (20) (1957) ;United States v;Bunch, 3 USCMA 186, 11CMR 186 (1953).
Derelict in duty (Art. 93(3)). The word “willfully” was added as this offense can also be committed in this manner. See 171c. Other modifica- tions were made to avoid the literal interpretation in some instances that the failure or neglect was the duty required. See CM 413411, Wolfson, 36 CMR 722 (1966).
Releasing prisoner without authority; sufering prisoner to escape (Art. 96). The word “duly” was deleted. This provides consistency with 175a and the rewording of Article 96 when codified. For the reason for the rewording on codification, see the explanatory note to 10 U.S.C. 5 896 (1964).
Misbehavior before the enemy; cowardly conduct (Art. 99 (5) ). The words “as a result of fear” were added for consistency with the same change in 178e. See United States v. Soukup, 2 USCMA 141, 7 CMR 17 (1953).
Maltreatment of prisoner (Art. 105 (2) ).This specification was modi- fied to require a statement that -the improper conduct amounts to mal- treatment. This conforms to the proof requirements in 184b .and the wording of Article 105 (2).

AGO 20081A

SpecijicationNo.: 134 (129)
155 (145)
AGO 20081A
Pam 27-2
Check, worthless, making and uttering (by dishonorably failing to maintain sufficient funds) (Art. 134). The new form as provided in Exec. Order No. 11009, 27 Fed. Reg. 2585 (1962) was used, but the words “wrongful and” were deleted as excess verbiage as the wrongfulness is the dishonorable failure. See United States v. Schneiderman, 12 USCMA 494,31 CMR 80 (1961). See also 213f (8).
Correctional custody (Art. 134). These new specifications were incor- porated from Exec. Order No. 11081, 28 Fed. Reg. 945 (1963). However, the word “duly” was added to both specifications to conform with the treatment in 213f(13). This also conforms with the manner in which other similar specifications are set out, for example, 36-38, 173, and 175. Cf. United States v. Carson, 15 USCMA 407,35 CMR 379 (1965).
Criminal libel (Art. 134). This new specification is based on the decision in United States v. Grosso, 7 USCMA 566, 23 CMR 30 (1957). It should be noted that the specification used in Grosso was patterned after the wording of a particular state statute which was alleged to be violated.
Debt, dishonorably failing to pay (Art. 134). The words “wrongfully and” were deleted as excess verbiage as the wrongfulness is the dishonor- able failure. See United States v. Schniederman, 12 USCMA 494, 31 CMR 80 (1961). See also 213f (7).
Drugs, habit forming, or marihuana: wrongful use, transfer, or sale (Art. 134). Transfer and sale were added to the possible selections in this form. This is consistent with the same addition in the Table of Maximum Punishments, Section A, 127c. See the discussion of the reasons for these additions in the Table which are discussed as changes in Chapter V.
Drugs, habit forming, or marihuana: wrongful introduction into mil- itary unit, etc. (Art. 134). This new specification is based on the decision in United States v. Jones, 2 USCMA 80,6 CMR 80 (1952).
False or unauthorized pass offenses (Art. 134). This specification was modified to provide consistency with the treatment of these offenses in 213f (11) and the Table of Maximum Punishments, Section A, 127c. See the discussion of the reasons for modifications in the Table which are discussed as changes in chapter XXV.
False pretenses, obtaining services under (Art. 134). This new speci- fication is based on the decision in United States v. Herndon, 15 USCMA 510,36 CMR 8 (1965).
False swearing (Art. 134). The selection “(in his testimony before a
court-martial at the trial of )” was deleted because of United States v. Smith, 9 USCMA 236, 26 CMR 16 (1958). The word “false” was added before “statement” because of United States v. McCar- thy, 11 USCMA 758, 29 CMR 574 (1960). See also ACM 17112, Damin- ger, 30 CMR 826 (1960).
Fleeing scene of accident (Art. 134). Modified to provide for appro- priate allegations when a passenger other than the driver is charged. See United States v. Petree, 8 USCMA 9, 23 CMR 233 (1957). Also modified to incidate that the accused was in the vehicle involved in the accident or collision. See United States v. Fleig, 16 USCMA 444, 37 CMR 64 (1966).
Impersonating a commissioned, warrant, noncommissioned, or petty oficer, or an agent or official (Art. 134). The word “willfully” was added

SpecificationNo.: Dyer Act, 18 U.S.C. § 2312 (1964). See United States v. McCarthy, 4 USCMA 385, 15 CMR 385 (1954), which held that to constitute the offense the aircraft or vehicle must be stolen rather than merely wrong- fully appropriated.
Wrongful cohabitation (Art. 134). This specifi’cation is a new addi-tion. See United States v. Melville, 8 US,CMA 597, 25 CMR 101 (1958) ; United States v. Leach, 7 USCMA 388,22 CMR 178 (1956).
AGO?OOSlA
Pam 27-2
APPENDIX 7

INVESTIGATING OFFICER’S REPORT
d
This appendix was modified by substituting, with minor modifications therein, the form currently in use, Department of Defense Form 457, October 1969.
The only other significant change is the addition of the material contained in the block in item 18 of the form.
AGO 20081A

APPENDIX 8

PROCEDURE FOR TRIALS BEFORE GENERAL
COURTS-MARTIAL; CONTEMPT AND REVISION PROCEDURES
FOR GENERAL AND SPECIAL COURTS-MARTIAL

a. Trial Procedure for Article 39(a) Session. Procedure for an Art.
r

39(a) session held prior to assembly is provided. It may be adapted for
other Art. 39(a) sessions. It is not necessary or desirable to provide a
detailed procedure for the Art. 39(a) session. The specific procedure
should be left to the discretion of the military judge. This appendix
insures, however, that the jurisdictional facts in the case have been veri-
fied on the record prior to the taking of any action at the session. The
appendix may be used by the military judge at an SPCM by amending the
qualifications of counsel section and the duties of the reporter as appro-
priate. Even if the Secretary concerned does not allow arraignment and/
or pleading at an Art. 39(a) session held prior to assembly, the military
judge may inquire into the providency of a proposed guilty plea and thus
shorten the post assembly procedure.
b. Trial Procedure for General Courts-Martial. General. Because of the increasing differences as to procedure to be used by general and special courts-martial, it has become impractical to retain a single trial guide which would serve for both. Accordingly, ap- pendix 8b provides the procedure only for trials by general courts-mar- tial. No specific procedure is provided for the special court-martial. How- ever, procedures for special and summary courts-martial may be provided in regulations of the Secretary of a Department and. will, so far as practicable, conform to that provided in 8b for general courts-martial. See 78 and 79. In b, appendix 8, language applicable only to special courts has been eliminated, and no comment is made below. Otherwise, the principal changes are discussed individually below. Informal Inquiry. The third sentence in the note, which indicates that the military judge should verify the qualification of any individual counsel, is a new addition. This precaution could result in saving time at the trial in the event the individual counsel is not qualified. Interpreter. The last sentence of the note is a new addition which cross references 50 for the purpose of reflecting that three types of inter- preters may be used at’a trial. Unqualified IC. This is a new addition which advises the accused of possible courses of action when it is discovered that he- has an unqualified individual counsel. This addition is consistent with provisions contained in 48a and 61f (3). Explanation to accused. Revision was made requiring the military judge rather than the trial counsel, to explain the accused’s rights when
he is represented by a counsel who has acted in another capacity in the case. This is a more fitting duty for the military judge.
AGO 20081A

Pam 27-2
Inquiry into request for military judge alone. This portion of the procedure was added because of the provisions of the Military Justice Act of 1968 providing for trial by the military judge alone.
Request for enlisted membership. This portion of the procedure was revised by the addition of a question by the military judge which requires the defense counsel to state whether the accused has been advised of his rights to have enlisted members on the court. A new note was added which provides for the action to be taken if the accused has not been advised. See United States v. Parker, 6 USCMA 75, 85, 19 CMR 201, 211 (1955).
Preliminary instructions. The note contained herein is a new addi- tion. It has been added as it is now common practice for many military judges to give preliminary instructions, and it is believed that they serve to prevent mistrials which might result from a lack of knowledge by court members.
Members sworn. The oath has been changed to agree with changes made in it in 114b. MJ Sworn. The oath has been changed to agree with changes made in it in 114a. Prosecution sworn. The oath has been changed to agree with changes made in it in 114c. Defense sworn. The oath has been changed to agree with changes made in it in 114c.
Disclosing grounds for challenge. The material now contained under this subtitle was formerly contained under “challenges.” The title was changed because the subjects of disclosures and challenges are now treated separately. This is consistent with treatment of these subjects in
62. The second sentence of the note which is opposite this subtitle has been revised to conform with the new procedure provided for the with- drawal of charges and specification in 56d. The two notes which were formerly contained under the subtitles “grounds disclosed by records” and “grounds disclosed by enlisted mem- bers” have been consolidated into one note which is now under the subtitle “grounds disclosed by members.” This change was made because the pro- cedures for handling disclosures are the same regardless of how a disclo- sure is made. Consolidation provides additional clarity. Grounds disclosed by members. The second sentence of the trial coun- sel’s announcement is a new addition which cautions court members to state only the general nature of a possible ground for challenge. Challenges. This subtitle has been displaced for the reasons discussed above for the addition of the subtitle “Disclosing grounds for challenge.” The note concerning the procedure for challenges has been revised in order to be consistent with the provisions of 62. Withdrawal of charges. This portion has been completely revised. It now only consists of a cross reference to 56. The former provisions were no longer applicable in view of changes in 56. Arraignment. The language used by the trial counsel has been revised to require the defense counsel to make a clear election on whether he wants the charges read or not. The former language often caused confu- sion as to who should say what and when it should be said.
Distribution of charges and specifications. This is a new subtitle which incorporates the common practice which was formerly sanctioned
AGO 20081A
Pam 27-2

in the trial counsel’s statement under “waiver of reading charges.” Sepa- rate treatment of this matter has been provided for purposes of clarity and because the court members should have a copy of the charges and specification even if the accused does not waive their reading. It should be noted that provision is made for earlier distribution with the consent of defense counsel. Many counsel prefer the distribution to be made before the court members are asked to disclose grounds for challenge since they sometimes refresh members on possible grounds for challenge.
End of arraignment. The military judge now calls for the pleas and gives the advice formerly given by the trial counsel as to making motions.
Motion. A new statement was added for the defense counsel whereby he simply indicates whether he has or does not have motions to be made. A statement was added to the note indicating that motions for appropri- ate relief are waived if they are not made prior to plea or prior to the conclusion of any Article 39(a) session held prior to assembly, whichever occurs earlier. A new note was added indicating that the military judge may hold a hearing out of the presence of the court members at this time to determine the substance of any motions and the procedures to be followed in disposing of them.
Hearing on motion. The new subtitle has replaced the former subtitle “Rulings by the LO or president on interlocutory questions,” and the note contained therein was moved from immediately below to immediately above the subtitle “Ruling on the motions.” Additionally, the content of the note was changed to agree with 57b, 57g(2),and 67e.
Request for hearing on guilty plea. This is new material which makes it possible tohava the explanation las to a guilty plea prior to having the plea announced in open session. This will eliminate possible prejudice to an accused where the court hears a plea of guilty which is not accepted.
Pleas. The actual pleas of the accused, and consequently this subtitle, have been moved to come after the explanation of any guilty plea. “Ex- planation of plea of guilty,” formerly listed under “Pleas,” has been given the status of a separate subtitle and all material dealing with guilty pleas was incorporated under this new subtitle for purposes of clarity and orderly arrangement.
Form of explanation of plea of guilty. This is a new main subtitle. A requirement that the explanation should be conducted out of the presence of th’e court members was added to the note. See 70.
Consultation with DC. This is new material which is consistent with the requirement in 70.
Advice as to punishment. This material has been moved from behind to before the “general explanation” on the basis that any misunderstand- ing as to the punishment authorized should be resolved prior to any further explanation. It is now a part of the “form of explanation” and is no longer a main subtitle. Provision has been made to advise the accused of the .maximum authorized punishment without a request from him, and the note which formerly indicated that the advice should be given on his request has been deleted. This should almost completely eliminate the withdrawal of guilty pleas which are accepted from accused who are of the opinion that the authorized punishment is other than it really is.
Eflect of previous convictions. The material contained herein was formerly under the subtitle “Advice as to punishment.” It is felt that the
AGO 20081A

Pam 27-2
new designation is appropriate as it makes it easier to follow the guide. Additionally, although it should be separate from the normal advice, it should immediately follow the normal advice in cases in which it is applic- able. The note has also been revised to conform with the revisions in Section B, 127c.
Accused’s understanding of punishment. This is a new addition which has been added as a precaution against withdrawal of guilty pleas subsequently in the trial when an erroneous understanding of the punish- ment is brought out.
General explanation. This portion has been modified to conform with the new treatment of this subject in 70b(2) and (3).
Additional explanation. This is a new note which sanctions the cur-rent practice.
Acceptance of guilty plea. This announcement by the MJ is new to the guide, but if is common practice. The military judge by advising the defense counsel of his decision as to accepting or rejecting the guilty pleas makes it possible for the defense counsel to present added argument and authority prior to terminating the hearing, if he desires to do so.
Legal authorities. This subtitle and all material relating thereto has been completely deleted. There is no set time at which counsel may pre- sent legal authorities, and it is usually done at those times when it is necessary to support specific 1ega.l arguments which me usuially conducted out of the hearing of the court members. See United States v. Johnson, 9 USCMA 178,25 CMR 440 (1958).
Presentation of prosecution case. That portion of the note has been deleted which previously indicated that the prosecution could make refer- ence to a confession in the opening statement. It has been replaced by a cross reference to 44g(2) on the ground that it is better practice to cite the general rules applicable to opening statements rather than giving a specific illustration.
Oral stipuhtion.’The word “oral” has been added to the subtitle designation since the material contained therein relates to the proper disposition of oral stipulations. Written stipulations are provided for later in the guide.
Examination by the court. The next to last sentence of the second paragraph of the note is a new addition which provides that both sides are permitted cross-examination when new matter is developed through examination by the court. This is in accordance with the provisions of
1493 (3). Argument on objections. A cross reference to 57g(2) has been added for reference to a discussion of when these arguments are conducted before the members of the court or out of their presence.
Admission of evicCence for limited purpose. This is a new admdition which is based primarily on the provisions of 57a (2).
Contempt procedure. This subtitle and its note were deleted as serv- ing no useful purpose.
Description of article for the record. The second note, which pre- viously provided that an offered exhibit not admitted in evidence is at- tached to the record on request, has been modified to require attachment of the article or a suitable substitute for all exhibits marked for identifi- cation, whether or not admitted. This conforms with the requirement in
AGO 20081A

Pam 27-2

54d. The third note, concerning the transcription of exhibits read to the court, is a new addition.
Authenticated oficial records and banking entries. This has replaced the former subtitle “depositions and authenticated official records.” The material opposite this subtitle now relates only to the matters included in the subtitle that no longer deals with depositions. The nature of official records and banking entries dictate that they be discussed jointly (see 143b(2) and (3)), and depositions are properly included in the next subtitle which is discussed immediately below.
Written stipulations and other admissible documentary testimony. This note is a new addition. The proper procedure for handling written stipulations of facts or of the content of a writing is set forth in accord- ance with 154b. The note also sets out the proper procedure in regard to testimony admissible in documentary form. See 145.
Confessions and admissions. The portion of the first sentence of the note concerning an admission is a new addition based on Miranda v. Arizona, 384 U.S. 436, 476-477 (1966). The remainder of the note has been revised to make it discretionary with the military judge as to whether any inquiry or explanation is conducted concerning the accused’s right to testify as to a pretrial statement. It is also provided that any inquiry or explanati’on will be made out I& the hearing of the court members. These new provisions are consistent with 53h.
Explanation of accused’s right to limit his testimony. The word “bo circumstances” have been deleted at the end of the subtitle. This was done as the explanation by the military judge has been modified to include the right of the accused to contest that he in fact made the statement in addition to testifying as to the circumstances surrounding the taking of the statement. This is consistent with the provisions of 140a.
Excluding members. This note has been substantially modified to reflect current law and practice and new provisions of the Manual as cited in the note.
In-court conference. The note has been revised to require the military judge to state at the outset of the conference whether it will be recorded and included in the record. The military judge’s statement at the conclusion of the in-court hearing has therefore been deleted as no longer necessary. ‘
Out-of-court hearing. This ‘subtitle has been subsbantially revisled. The note has been modified to.explain when an in-court conferenlee or lout-of- court hearing is the proper procedure. The subtitles “opening of hearing,” “conduct and recording of hearing,” and “termination of hearing” and appropriate material have been added under this subtitle. These replace the former subtitles “recording out-of-court hearing” and “recording presentation of additional instructions” and the material contained therein which is no longer applicable because of the requirements in 57g(2) for recording and incorporating out-of-court hearings in the record of trial.
Accounting for personnel after adjournment or recess. The last sent- ence of the note has been modified to require recording of the reason for the absence of the court members as requ~ired by 41d(4).
Absence of member. This is a new addition which provides the proper procedure when a member is absent after assembly. See 37b.
Reading of record. The first statement by the military judge has been modified to provide in accordance with 41e that only that part of the record heard previously by the court members will be read to the new member.
AGO 20081A

Pam 27-2
Motion for a finding of not guilty. This is a new subtitle. It was considered better practice to discuss this motion at that point in the proceedings where it .may first be made rather than immediately after arraignment with the other motions that are normally made at that time.
Accused as a witness. The statement of the defense counsel has been modified so that it is made only when the accused elects to testify rather than then and also when ‘he elects to remain silent. Additionally, the statement makes no mention of the rights of the accused to testify having been explained to him since this is normally assumed at a general court- martial as the accused is represented by legally qualified counsel. See 53h. Added to this statement by the defense counsel is a statement indicating whether or not the accused’s testimony will be limited to certain specifica- tions or charges.
Explanation of rights of accused to testify (findings). The first note has been completely revised to indicate that it may be assumed that the accused has been correctly advised of these rights, ‘and by deletion of the requirement that an affirmative showing be made on the matter. The new provisions are consistent with 53h.
Recall and reopening the case. This is new material which has been added on the basis of provisions in 149a.
Witness called by court. The first paragraph of the note has been modified by the deletion of all reference to special court-martial and by rewording in the terms of 54b. Also deleted from this note is the former statement that the military judge does not rule finally when the court requests a witness expected to testify in relation to the sanity of the accused. See United States v. Borsella, 11 USCMA 80, 28 CMR 304 (1959);United States v. Frye, 8 USCMA 137,23 CMR 361 (1957).
The content of the second paragraph of the note is basically un-changed, but it has been stated in more detail.
Hearing on instructions. This material is a new addition based on 73 and the common practice which is sound.
Arguments by couns.el. The fourth sentence of the first note, formerly indicating that the counsel could argue the law of the case on the findings, has been modified to indicate that they may argue the facts as they relate to the law. The provisions of 72b bar mumel from citing legal au&horities or the facts of other cases in arguing on the findings. The reason for these provisions is that the court receives its instructions on the law only from the military judge. The modification removes the conflict with these provi- sions. It is common practice, and not objectionable, for the counsel to state that the military judge will instruct what the law is on a certain point and then relate this law to the facts involved in the case.
Charge to court. This portion of the guide has been substantially revised. It is now divided into two notes which separately deal with instructions in guilty and not guilty plea cases. The guilty plea note is derived from 73a. The not guilty plea note is based on the requirements expressed generally throughout 73. The changes are necessitated by the great change in the concept of instructions since preparation of the 1951 trial guide. The matter of additional instructions is discussed in broad generalities because of the great variation in instructions required from case to case. However, it is anticipated that the military judge will apply sound discretion in determining what additional instructions are required in light of the circumstances in each case. The verbatim listing of the
AGO 20081A
Pam 27-2

charge contained in Article 51(c) has been deleted since it is also quoted verbatim in 73b.
Closed session. The first portion of the note formerly indicated only that the courtroom was cleared for deliberation and voting on the find- ings. The note has been modified to1 also indicate that the members of the court may retire to another room for this purpose. This is a common practice which is considered desirable. The examples as to when the court may ask for additional instructions have been deleted. These were for- merly contained in the last sentence of the note. They are no longer necessary since the members do not have access to the Manual (53d) and examples are contained in 74e.
Voting on findings. Only the first sentence has been retained from the former note. The remaining material has been replaced by a cross refer- ence to 74. It is no longer necessary to include a detailed discussion of the method of voting, the number of votes required, and the rules applicable to reconsideration since 53d bars the court members from access to the Manual. For the same reason the subtitle “Voting procedure” and the material contained therein has been deleted.
MJ called after findings made. All of the second paragraph of the note after the second sentence, has been revised. A provision has been added for the proper procedure when the military judge decides that additional instructions are required after examination of the findings in this manner. Under this provision he must advise both sides of the cir- cumstances requiring additional instructions. A failure to do so could well constitute a private communication to the court. See United States v. Linder, 6 USCMA 669,20 CMR 385 (1956).
MJ alone. Material related to conviction or acquittal by MJ alone has been added.
Evidence of previous convictions. This material has been revised to require that admissible evidence of previous convictions be marked, of- fered, and admitted in the same manner prescribed for other documentary evidence. United States v. Carter, 1USCMA 108, 2 CM R14 (1952). Also see 75 (2).
Summary of information from personnel records for sentencing pr- poses. This is a new note to implement the provisions of 75d.
Rights of accused (sentence). The first note has been revised to indicate that it may be assumed that the accused has been correctly advised of his rights on sentence, and by deletion of the requirement that an affirmative showing be made on this matter. These changes are consist- ent with the provisions of 53h. The second note no longer requires that a written statement of the accused or his counsel on sentence be quoted verbatim in the record. The requirement now is only that it be attached to the record as an exhibit. The former requirement results only in unneces- sary work and duplication.
Arguments (sentence). This is a new addition which is based on 75e.
Sentence instructions. This is a new subtitle. The material contained in the note is based on 76b(l). It is patterned after the treatment af- forded to instructions on the findings. See “Charge to court,” above.
Court closed for sentence. This note has been completely revised. It has been indicated that the court members may conduct their closed ses- sion in another room as well as in the cleared courtroom. As previously discussed under “Closed session,” above, this is a common and desirable
AGO 20081A

Pam 27-2

practice. A provision for additional instructions is provided in the last sentence of the note in accordance with 76b (4).
Voting on sentence. All material previously contained in the note has been deleted in favor of a cross reference to various subparagraphs in 76. It is no longer necessary to include a detailed discussion of the method of voting, the number of votes required, and the rules for sentence reconsi- deration since 53d bars the members from access to the Manual.
Improper sentence. This is a new addition which is based on 76c.
c. Contempt Procedure.
Voting on preliminary ruling. The last sentence of the note has been changed to indicate that a tie vote is a determination in favor of the person involved rather than against him. This is consistent with 118b.
Closed session. A provision has been added to this note requiring the law officer, or the president of a special court-martial, to give the court any necessary instructions prior to their entry into closed session. See 118b.
d. Revision procedure.
Proceedings in revision. An addition has been made to the trial coun- sel’s statement of persons present which will also indicate any person present in an official capacity who was not present when the court ad- journed. This is consistent with 80b which permits a member of the prosecution or defense to be present who was previously absent during the trial. Accordingly, the words “unless they are now present” has been added at the end of the first sentence of the note. The third sentence of the note, based on 80b, is a new addition, which indicates that valid proceedings may be conducted when a quorum is present, if any absent members has been properly excused.
Directed by. The note has been revised to indicate that the military judge, or the president of a special court-martial, gives the court neces- sary instructions and that the court requests any additional instructions needed from him. Previously the note provided for instructions by both the military judge and trial counsel, but only upon request of the court. The modification is consistent with provisions in 80c.
New findings. This was formerly a portion of the subtitle “New findings and sentence.” The new subtitle has been used because it is considered appropriate to divide the former material into two separate subjects. The announcement of the new findings has been changed by dropping the reference to majority vote and substituting material requir- ing that the vote on the new findings is concurred in by two-thirds or all of the members. This change is necessitated because the former provisions conflicted with the reballoting requirements contained in 74d(3).The note under the announcement, making simply a cross reference to a, appendix 8, is a new addition.
New sentence. This subtitle is new. It has been added for the reason indicated above for adding the aubtitle “New findings.”
Adherence to former action. This is a new subtitle, but the presi- dent’s announcement remains basically unchapged.
e. Form for Request for Trial Before.Military Judge Alone. This form insures that the statutory requirements of knowing the identity of the MJ and consulting with counsel are met. In addition, it insures that an en-
AGO 20081A

listed me& is aware that he may have enlisted persons indud& in the membership of the coul’t.
The trial counsel is allowed to request argument if he desires to oppose the request for any reason. This also serves as a convenient means for informing trial counsel of the existence of a request. For form of request for trial by judge used in Federal Courts, see 325 F2d 632.
f.
Sample Format for Special and General Findings. See 74i. For form of speck$ findings used in Fedeml Courts, see Federal P~actice and Proce-dure, by Barron and Holzoff, section 4623.

g.
Summary. This appendix specifies the authentication format for summaria of personal records admitted for sentencing under 75d.

AGO 20081A

APPENDIX 9

GUIDE FOR PREPARATION OF RECORD OF TRIAL
BY GENERAL COURT-MARTIAL AND BY SPECIAL COURT-MARTIAL
WHEN A VERBATIM RECORD IS PREPARED

a. Record of Trial.
Index; Witnesses; and Exhibits. The itemized listings under these subtitles were deleted and re-placed by a note indicating that these details will be left to other pub1icatio.n~. This provides greater flexibility in making changes.
Out-of-court hearings and Article 39 (a) sessions. This note is a new addition.
e. Arrangement of Original Record With Allied Papers. The itemized listing of these papers was de- leted in favor of leaving this matter to other publications. This also provides greater flexibility for mak- ing changes.
AGO 20081A

APPENDIX 10

GUIDE FOR PREPARATION OF RECORD OF TRIAL BY SPECIAL COURT-MARTIAL WHEN A VERBATIM RECORD IS NOT PREPARED
a. Record of Trial With a Military Judge. This appendix is new and results from the provision of the Military Justice Act of 1968 authorizing the detail of military judges to special court-martial. The ap- pendix indicates how Article 39(a) sessions will be summarized and provides for those situations which are unique to trial with a military judge, such as request for trial by military judge alone. In other re- spects it is similiar to Appendix lob, below.
b. Record of Trial by Special Court-Martial Without a Military Judge.
Inquiry concerning Article 38(b). This section is new and is a result of the decision of the Court of Military Appeals in U.S. v. Donahew, 18 USCMA 149, 39 CMR 149 (1969).
Enlisted membership. The second sentence, pertaining to the defense counsel’s announcement as to enlisted membership, is a new addition.
Challenge. The first sente’nce, regarding the right of each accused to challenge, is a new addition.
Convening authority identified. This is a new addition.
Instructions (findings). This was modified to indicate that besides giving the Article 51(c) charge, the president also gives the other instructions required by paragraph 73 of the Manual.
Data as to service, etc. The portion pertaining to the admission of previous convictions was changed to indicate that they are offered and admitted in the same manner as other documentary evidence. See
753(2).

Instructions on sentence. This is also a hew addition.
Action. This portion is also a new addition.
c. Arrangement of Original Record With Allied Papers. The itemized listing of these papers was de- leted i’n favor of leaving this matter to other publications. This provides greater flexibility in making future changes.
AGO 20081A

APPENDIX 11 FORM FOR RECORD OF TRIAL BY SUMMARY COURT-MARTIAL
This appendix was changed by modifying the form currently in use, Department of Defense Form 458, October 1969, in accordance with the Military Justice Act.
AGO 20081A
APPENDIX 12

TABLE OF COMMONLY INCLUDED OFFENSES
In general, appendix 12 follows the format of appendix 12, MCM, 1951. The note at the beginning contains some new material. It sets forth a definition of an included offense and why it is important to determine an included offense. The caution concerning the use of the thble, which was in the first para- graph of the note, MCM, 1951, was accomplished in the last paragraph of the note. The limitations of the table stated in the second and third paragraphs of the note in the MCM, 1951 were incorporated in the second paragraph.
In the table, false swearing was deleted as an offense included in perjury. See United States v. Smith, 9 USCMA 236, 26 CMR 16 (1958). The former last entry in the table was also deleted. It con-cerned worthless check offenses. The entry under Article 123a was substituted for the deleted entry. These changes were previously made in the Manual by Exec. Order No. 11009, 27 Fed. Reg. 2585 (1962). Assault and battery was added throughout to those offenses which might include a battery. Additional significant additions to the table are shown in the chart on the following pages.
Article Offense Charged Article Included Offense Authority
I I I
87 Missing movement through de-Absence without authority. United States v. Bridges, 9
sign. I I USCMA 121, 25 CMR 383
86 (1958)

AGO 20081A Ax?-1
Pam 27-2

Article ( Offense Charged Article I Included Offense I Authority
I

Mutiny-Creation of violence or Riot. United States v. Duggan, 4 disturbance in concert with USCMA 396, 15 CMR 396 others, with intent to over-(1954) ride military authority. Disorderly conduct. See NCM 312, Red Bird, 15 CMR 569 (1954) and the included offense as to Article 116
94 Sedition. 134 Disorderly conduct. See the included offense as to Ar- ticle 116
99 Cowardly conduct. 86(3: Absence without authority. United States v. Hallett, 4 USCMA 378, 15 CMR 378 (1954) 99 Running away before the enemy. United States v. Parker, 3 USCMA 541,13 CMR 97 (1953)
Rape. Carnal knowledge. See United States v. McVey, 4 USCMA 167, 15 CMR 167 (1954) ; cf. CM 392172, Mosby, 23 CMR 425 (1957) Taking indecent, lewd, and las- United States v. Headspeth, 2 civious liberties with a female. USCMA 635, 10 CMR 133
1 I
(1953)
120 Carnal knowledge. Indecent acts or liberties with ACM 7576 Wilson, 14 CMR 557 13( a female under 16. (1953)
1 I
Robbery. Assault with a dangerous United States v. Craig,2 USCMA
128 weapon. 650, 10 CMR 148 (1953) Assault intentionally inflicting United States v.King, 10 USCMA grievous bodily harm. 465, 28 CMR 31 (1959)
1
Sodomy. 134 Indecent, lewd, and lascivious CM 368036, Jones, 13 CMR 420 acts with another. (1953) Assault with intent to commit United States v. Morgan, 8 sodomy. USCMA 341, 24 CMR 151 (1957)
Extortion. Communicating a threat. See Jeffers, The Military Ofense of Communicating a Threat, 15 Mil. L. Rev., 23, 41 (1962)
Assault upon a commissioned, Assault; assault and battery. CM 365376, McGuire, 12 CMR 432 warrant, noncommissioned, or (1953) petty officer of the Air Force, Army, Coast Guard, Navy, or a friendly foreign power, not in the execution of his office.
1

Assault upon any person who, 128 Assault; assault and battery. CM 394588, Whitehead, 23 CMR in the execution of his office is 555 (1967) 128 performing air police, mili-
tary policy, shore patrol, or
civil law enforcement duties.
Assault; assault and battery. United States v. Kluttz, 9 USCMA 20, 23, 25 CMR 282, 285 (1958)

Assault with intent to commit Assault with a dangerous United States v. Berry, 6 USCMA voluntary manslaughter. weapon. 638, 20 CMR 354 (1956) Assault intentionally inflicting United States v. Malone, 4 grievous bodily harm. USCMA 471,16 CMR 45 (1954)
Assault with intent to murder. Willful or careless discharge of United States v. Mundy, 2 a firearm. USCMA 500, 9 CMR 130
(1953)

-. -.

AGO 20081A
Article
134

134

Offense Charged
False or unauthorized military or official pass, permit, dis-charge certificate, or identifi- cation card, possessing with intent to deceive.
Impersonating an officer, war-rant officer, noncommissioned or petty officer, or agent of superior authority with intent to defraud.
Mails, taking, opening, abstract- ing, secreting, destroying, stealing, or obstructing.
Communicating a threat.
Article
134

134

121

117

Included Offense
False or unauthorized military or official pass, permit, dis-charge certificate, or identifi- cation card, possessing with- out intent to deceive.
Inpersonating an officer, war-rant officer, noncommissioned or petty officer, or agent of superior authority without in- tent to defraud:
Larceny; wrongful appropria-tion.
Using provoking speeches.
Authority
United States v. Burton, 13
USCMA 645, 33 CMR 177
(1963)

United States v. Collgmore, 11
USCMA 66,29 CMR 482 (1960)

See United States v. Dicario, 8
USCMA 353, 24 CMR 163
(1957)

United States v. Hazard, 8
USCMA 530,25 CMR 34 (1957)

AGO 2008lA

APPENDIX 13
FORMS FOR SENTENCES

General. This appendix has been modified substantially. It is now di-vided into three main paragraphs. The major changes are that the appen- dix has been modified so as to more closely follow the pattern of forms currently used in trials, to provide a form that is more easily adaptable to use as a sentence work sheet, and to do away with the use of forms which combine punishments.
Paragraph a opens with the introductory remarks of the president in announcing the sentence. It is common practice to include this on the sentence work sheets actually used by the court. Thereafter, in this para- graph, there is an explanation of the use of the forms in paragraph c to include the modification of those forms and their use in combination which was previously covered in the first introductory sentence of the former appendix 13. Examples of the proper method of announcing sent- ences containing combined punishments are then given. This approach, coupled with only setting out single punishment forms in paragraph c, eliminates several objections in regard to the forms contained in the appendix in the 1951 MCM. For instance, the use of examples for com- bined punishments eliminates the inference contained in the prior appen- dix that certain punishments should be combined, such as that other punishments should be included with punitive separation. Also, there is no longer an inference that only the combined punishments set out in the appendix are permissible. Of course, almost any combination may be made as explained in paragraph a. Because of the many combinations possible, it would be impracticable to attempt to set them all out in this appendix.
As to the examples of combined punishments in paragraph a, the first was adapted from the prior form 9 but the reduction provision is a new addition thereto; the second was adapted from the prior form 10a; the third was adapted from the prior form 20; and the fourth is a new innovation. The combined punishments formerly designated as forms 7, lob, 23 have not been used in this appendix on the basis that they are unnecessary in the approach taken in the modification. Accordingly, the former footnote 8 to the prior form lob which cross referenced 127c and Articles 18 and 19 was deleted as no longer applicable.
The forms for suspension from duty, command, or rank, previously designated as forms 15, 16, and 17, have not been used as these are no longer authorized punishments. See 126i. Accordingly, the former foot- note 11 to these forms was not used as it therefore became no longer applicable.
b, appendix 13, provides a new section which provides forms of sentenc- ing for use by the MJ sitting alone.
EXPLANATION OF CONTENTS OF PARAGRAPH c, SINGLE PUNISHMENT FORMS,. This paragraph has been organized by group-
AGO 20081A
ing single punishment forms under five main categories to provide for easier use. The contents of each category are discussed individually below.
For punitive separation. Forms 1,2, and 3 are new in that they were not previously listed as single punishment forms. However, they were included in the combined punishment forms previously designated as forms 9, 10a, lob, 20, and 23. Footnotes 1and 2 are new additions which were added for the convenience of the user. Footnote 3 was formerly 14, but the words “and commissioned warrant officers” were added in the interest of clarity.
Pertaining to deprivation of liberty or death penalty. The note in the body was formerly the last sentence of the introductory remarks to this appendix.
Form 4 was previously Form 14 and footnote 4 was previously foot- note 10.
Form 5 is unchanged in number or content, but footnote 5 thereto was previously footnote 3.
Form 6 is unchanged except that “[the length of your natural life]” has been added. The addition was previously contained in the combined form designated as form 23. Footnote 6 is a new addition which was added for the user’s convenience. The former footnote 4 which pertained to confinement at hard labor has been deleted on the basis of United States v. Varnadore, 9 USCMA 471, 26 CMR 251 (1958). That footnote indicated that a sentence to confinement couId not exceed 6 months unless a dishonorable or bad-conduct discharge was also adjudged.
Form 7 was adapted from the prior form 8. However, all reference to solitary confinement has been deleted on the basis of United States v. Stiles, 9 USCMA 384, 26 CMR 164 (1958). Also, this form has been changed so that the diminished rations selection no longer includes “to wit: two full meals per day.” This was deleted because the last paragraph of 125 now indicates that the ration to be furnished under this punish- ment is to be specified by the authority who administers the punishment. Footnote 7 was previously footnote 5, but it has been corrected to reflect changes in the text which provide that these punishments may not be imposed in excess of 3 days and may only be imposed on enlisted members’ attached to or embarked in a vessel and which removed the limitation prohibiting imposition on Army and Air Force personnel.
Form 8 was previously form 24 and the content is unlchanged. Pertaining to financial penaltp. The subject matter of the note in the body was formerly covered in the second sentence of the introductory remarks to this appendix. However, it has been changed, to indicate that financial penalties should be expressed in even dollars. This is consistent with changes in 126h(l). Accordingly, the forms herein have been changed so as to no longer provide a space for expressing these punish- ments in cents. Prior forms 1and 3 have not been used because it is desirable to have detentions and forfeitures expressed in number of months even if it be for just one month. These forms have led to improperly announced sentences in a number of cases by causing courts to announce other than the sent- ence intended and arrived at.
Form 9 was previously form 2 but it has been modified to require an announcement of how long the money shall be detained. See 126h(4). Footnote 8 was formerly footnote 1, but it has been corrected to be
AGO 20081A

consistent with changes in the text. Accordingly, the provision that deten- tion of pay is only authorized in the case of enlisted persons has been deleted (126h(4)). Also, the cross reference to 127b was deleted because deletions therein made it nr, longer applicable.
Form 10 was previously form 4, but it has been changed by the addition of “(all pay and allowances) ” which was formerly contained in the combined forms of punishment in forms 9, lob, 20, and 23. Footnote 9 combines the information formerly contained in footnotes 2, 6, and 7, but it has been corrected to compensate for changes in the text by deletion of the cross reference to 127b which was formerly contained in footnote 2.
Form 11combines the provisions of the prior forms 21 and 22 into one form. Footnote 10 was previously footnote 15.
For reduction in grade or loss of numbers, lineal position, or senior- ity. Forms 12,13 and 14 were previously designated as forms 11,18, and 19 respectively. Footnote 11 was formerly footnote 9, but the former cross reference to 126c(2) has been changed to 16b to compensate for changes in 126c(2). Footnotes 12 and 13 remain unchanged in number and con-tent.
Admonition and reprimand. Forms 15 and 16 were previously forms 12 and 13. Footnote 14 is a new addition which was added for the user’s convenience.
AGO 20081A
Pam 27-2
APPENDIX 14

FORMS FOR ACTION BY CONVENING AUTHOmRITY
Editorial changes were made throughout, and the forms were renumbered as necessitated by sub- stantive changes discussed below.
Forms 3, 4, 29, 30, 35, 36, 48, 49 are new and deal with deferral of services of confinement and re- scission of such deferral. See 88g and f.
Form 6 in the former Manual read as follows: “Approved and suspended.” This form was de-leted as indefinite suspensions are no longer authorized. See 88e(l) and 88e(2) (a). Similarly, the forms now designated as 18, 19, 30, and 41 were modified by removing indefinite suspensions as possible selec- tions.
Form 26 is new. It provides for approval of findings when there is a rehearing as to sentence only.
Form 28 is new. It provides commutation of a punitive discharge to confinement.
The last example of the note under the form now designated as form 32 has been modified so as to no longer indicate that the power to defer forfeitures is limited to deferral until the sentence is or- dered executed. The same change was made in the note under form 41 and in form now designated as form 41. See the second paragraph of the discussion of changes made in 88d (3) of chapter XVII.
The forms now designated as 33 and 46 were modified by deleting the entries which permitted the selection of administrative suspension of a punitive discharge until release from confinement or com- pletion of appellate review, which ever was later. United States v. Cecil, 10 USCMA 371, 27 CMR 445 (1959) ;United States v. May, 10 USCMA 358, 27 CMR 432 (1959).
Form 44 (formerly 37) was changed to proyide for commutation of a punitive discharge to addi- tional confinement. The form formerly included a recommendation for commutation, which was deleted because the convding authority is empowered to commute. See 88a and c.
The material in d is substantially the same as that which appears in Manual for Courts-Martial, United States, 1951, app 14 (Addendum, 1963).
AGO 20081A
APPENDIX 15

FORMS FOR COURT-MARTIAL ORDERS
The second sentence of the first note under section b was cha’nged to be consistent with 107 by sub- stituting “an appropriate convening authority” for “the convening authority.” Also, in the last sen- tence of this note, the words, “and there has been no modification of the findings,” were inserted in
T
order to require a supplementary order when a board of review modifies the findings but affirms the sentence without change.
In all forms in section b, the words “Commandant Naval District” were substituted for “U.S.S.” because commanding officers of commissioned vessels of the Navy do not issue court-martial orders in Articles 66 and 67 type cases.
In the one form contained in section c, “(suspended)” was deleted as an example of an appropriate choice as indefinite suspensions are no longer authorized. See 88e(1) and 88e(2) (a).
In the next to the last sentence of the note under section e, “an appropriate convening authority” was substituted for “the officer who took action” to be consistent with Article 72(c).
The words “Commandant Naval District” were added to the last form in section e for consistency with changes made in section b.
Forms have been provided for deferral of service to confinement and recission thereof.
AGO 20081A

APPENDIX 16

RECORD OF PROCEEDINGS TO VACATE SUSPENSION

The previous form was replaced by the form currently in use, Department of Defense Form 455,

October 1969.

CHAPTER 1
MILITARY JURISDICTION
Paragraph 2  Exercise. In the first sentence, “within its territory or a. portion thereof” was substituted for “of a locality” as martial law, by definition, can be exercised only in domestic territory.

Pam 27-2
Paragraph
The first paragraph was formerly the first paragraph of 23a. The
former second paragraph of 23a has been deleted. That paragraph indi-
cated that.the right of the United States to apprehend and bring to trial a
deserter was paramount to any right of control over him by a parent on
the ground of his minority. This was no longer an accurate statement of
the law in view of United States v. Overton, 9 USCMA 684, 26 CMR 464
(1958) and United States v. Blunton, 7 USCMA 664, 23 CMR 128 (1957).
The present second paragraph was formerly the second paragraph of 23b
and the third paragraph replaces the former 23c.

Paragraph
35c  Action of the staff judge advocate or legal officer. The second sen-
tence is new, and suggests additional details that should be included in the
advice when appropriate.

Pam 27-2
Paragraph
code, and there is no good reason for so inconveniencing the members when a long record is involved. Additionally, the members should not hear those portions of the record which relate to hearings previously held out of their presence. Also, in the fourth sentence, the word “evidence” was substituted for the words “testimony of each witness” and the word “introduced” substituted for “examined.” This was done to broaden the
subject covered. As modified this will now cover evidence such as deposi- tions or stipulations that are read into the record.
The subsections of this paragraph have been revised. Subsection (1) now relates to functions of the president when an MJ is detailed and (2) relates to functions of the president at a SPCM without an MJ. The MJ is now designated as the presiding officer by statute Art. (a). The president is consulted as to the time of assembly, but the MJ sets the time. The president prescribes the uniform at sessions requiring attendance of mem- bers. It is unlikely that the president will administer any oaths when an MJ is present, but service regulations may so provide.
Duties of President of Special Court-Martial Without an MJ. The president of the SPCM without an MJ is the presiding officer and he has increased authority to rule under Art. 51 (b). See paragraph 57.
Two sentences were added to require the president to instruct on the maximum punishment as limited by the authority of the court and restric- tions which apply to rehearings and new or other trials. United States v. Barnes, 11USCMA 671, 29 CMR 487 (1960) ;United States v. Larsen, 11 USCMA 555, 29 CMR 371 (1960) ; United States v. Green, 11 USCMA 478, 29 CMR 294 (1960) ; United States v. Erchmann, 11USCMA 64, 28 CMR 288 (1959).
Changed to conform with Art. 54 which states that the MJ will generally authenticate the record of trial and added reference to app 9b (3).
A general statement was added to make it clear that paragraph 41 does not apply in those cases wherein the presence of members is not required by the Act.
Duties of court members. Admonitions were added in two sentences
against members fraternizing with other parties to the trial (United States v. Walters, 4 USCMA 617, 16 CMR 191 (1954))and discussing the case before it is submitted to them for final decision (United States v. Payne, 12 USCMA 455,31 CMR 41 (1961) ).
The last portion of the last sentence was changed from “is” to “may be” a military offense. Because the improper conduct of a court member is an offense depends on the particular facts involved.  ,
Absence of members. Changed “assembly” to “meeting”, and “ar-raignment” to “assembly” to conform with new terminology. “Assembly” now has a technical meaning as defined in 61j. “Arraignment” is no longer a suitable point after which to require the absence of a member to be explained in court since the accused may be arraigned at an Art. 39(a) session wherein members are not required. “Assembly” was substituted for “arraignment” by the new Art. 29 (a).
EfSect of Absence. Changed to conform challenging procedure with Art. 41. It now relates only to the SPCM without an MJ. When an MJ is detailed, he rules finally on challenges.
AGO 20081A

Pam 27-2
Paragraph
The latter portion of this subparagraph was restated to avoid the implication that the TC can determine whether witnesses requested by the defense shall be called for the trial.
Trial counsel preparation for trial. The second sentence was modified and the third sentence added to exclude the question of jurisdiction from those matters as to which a plea of guilty relieves the prosecution of the burden of proof. United States v. Wheeler, 10 USCMA 646, 28 CMR 212 (1959). Also see ACM 15760, Wheeler,27 CMR 981 (1959).
Added reference to app 9b.
Trial counsel’s general duties during the trial. The third paragraph was modified to provide that the trial counsel should call the court’s attention to illegalities throughout the entire trial rather than just when the court is in open session. The new wording therefore covers the out-of- court hearing situation.
Trial counsel’s presentation of the case. The former first paragraph which indicated that the trial counsel should read the Manual to the court
was deleted. United States v. Johnson, 9 USCMA 178, 25 CMR (1958) ; United States v.Fair, 2 USCMA 521,lO CMR 19 (1953).  440
Formerly the third paragraph (present second paragraph) indicated that the trial counsel could cross-examine a witness called by the court if that witness was adverse to the prosecution. This paragraph was modified to permit cross-examination if the witness has not previously testified for the prosecution of defense, or if the witness has so testified, as to any new matter elicited upon recall by the court. The new provision is consistent with 1493 (3) and 153b (1) in the former and present Manuals.
Assistant trial counsel of general court-martial. The latter portion of this subparagraph was modified to implement the principle that no person may practice law before a general court-martial unless he is qualified under Article 27(b) or is otherwise qualified as a lawyer. United States v. Davis, 9 USCMA 614, 26 CMR 394 (1958) ; United States v. Kraskouskas, 9 USCMA 607, 26 CMR 387 (1958). Of course, this does not preclude the appointment of personnel without the requisite legal qualification as as- sistants so long as their assistance is limited to pretrial matters and ministerial functions during the trial. Also see paragraph 6. Absence of defense counsel. The MJ was added as an authority per- mitted to excuse defense counsel from attendance at trials. The authority of the president to excuse was limited to special courts-martial without an MJ.  I . I I
Assistant defense counsel. This paragraph was revised to indicate that the assistant defense counsel must meet the qualifications prescribed by Article 27 for defense counsel in general and special courts-martial before he can conduct any portion of the defense before those courts. United States v. Davis, supra; United States v. Kraskouskas, supra. Here also, this does not preclude the appointment of personnel without the requisite legal qualifications as assistants so long as their’ assistance is limited to pretrial matter and ministerial functions during the trial. Also see paragraph 6.
Right of accused to counsel of his own choice. Changed to conform to Art. 38(b) with regard to excusal of detailed counsel by the MJ or presi- dent of an SPCM without an MJ.
AGO 20081A

Pam 27-2
Paragraph  convening authority could not make such an appointment when there is a request by an accused and the convening authority wants to approve it.
A provision was added in the last paragraph to the effect that a pending appeal from a decision that requested counsel is not available is proper ground for postponement or continuance of a trial. United States v. Vanderpool, 4 USCMA 561,16 CMR 135 (1954).
New paragraph which requires DC to advise the accused of his right to request trial by MJ alone pursuant to Art. 16 when an MJ is detailed to the court. The request is transmitted to the MJ through the TC in order to allow TC to request argument. The remaining subparagraphs are relet- tered. (Present e becomes f, etc.)
Relettered.
Defense counsel advising the caccused of appellate rights. The first sentence of this subparagraph was modified to require detailed advice to the accused as to his appellate rights.
The second sentence was changed to indicate that communications concerning requests for appellate defense counsel are directed to appro- priate authority rather than appellate defense counsel since the proce- dures in the different services vary.
The fourth sentence was modified to allow the accused 10 days after notice qf action on his case, rather than after sentence, to request appel- late defense counsel. United States v. Darring, 9 USCMA 651, 26 CMR 431 (1958).
Requires defense counsel to inform the accused of his right to apply for deferment of service of sentence to confinement and to explain to him the legal consequences involved if his request is granted. See discussion opposite 88f. Sub-paragraph 48k(4) is redesignated 48k(5).
Reporter; Interpreter. These paragraphs were expanded to include employed reporters and interpreters as authorized by Article 28.
Duties of the reporter in general. The third sentence was rewritten to state the duties of the reporter regarding the record without inferring that it is a duty of the reporter to control “off the record” discussions.  I
Compensation of reporters and interpreters. Provisions for regula- tions covering payment of allowances, expenses, and per diem for report- ers and interpreters were added. The prior provision only as to compensa- tion was not sufficiently broad. The specific reference to 114d and e, respectively, for the reporter’s and interpfeter’s oaths were changed to Chapter XXII generally in view of the change to Art. 42(a), and it is spelled out that the secretary concerned will provide regulations concern- ing oaths foi. reporters.  I  I I
Counter-interpreters. This subparagraph is a new addition which provides for the use of a counter-interpreter by the accused. United States v. Rayas, 6 USCMA 479,20 CMR 195 (1955).
AGO 20081A

Pam 27-2
Paragraph
63  Witness for the prosecution. The second paragraph is new, and sets forth how a person may be a witness without testifying in person at the trial. See United States v. Wilson, 7 USCMA ‘656, 23 CMR 120 (1957) ; united States v. Moore, 4 USCMA 675,16 CMR 249 (1954).
Arraignment. The last sentence of the first paragraph stated, in reference to Article 35, that a valid objection to trial based on the lack of the time between the service of charges and the trial would not prevent arraignment. This sentence was deleted as it suggested a procedure inferior to that of waiting until the accused has no basis under Article 35 for the objection when it is apparent that he would object to trial.
If service regulations permit, arraignment, plea, and entry of find- ings may be held at an Art. 39(a) session prior to assembly. A new unnumbered 4th paragraph so provides (Art. 45 (b) ).
Additional charges after arraignment. The change in language of this paragraph was for clarity. There was no intent to change its meaning as interpreted in United States v,Davis, 11 USCMA 407, 29 CMR 223 (1960).

Pam 27-2
Paragraph 68g  Former punishment. In the first sentence “and punishment imposed under Article 13 for a minor disciplinary infraction” was inserted so that this, as well as punishment under Article 15, would be a bar to trial. See United States v. Williams, 10 USCMA 615, 28 CMR 181 (1959). The discussion of the substantive law relative to former punishment is now in 215c. See the comments on 215c for the changes in this discussion.
Grant or promise of immunity. This subparagraph is new. See Mur- phy v. Waterfront Commission, 378 U.S. 52 (1964) ; United States v. Kirsch, 15 USCMA 84, 35 CMR 56 (1964); ACM 10757, Guttenplan, 20 CMR 764 (1955). 68h was formerly only a reference to 148e.
Speedy trial. This subparagraph is new. In regards to the qualifying “may” in the last sentence, see United States v. Schalck, 14 USCMA 371, 34 CMR 151 (1964). The substantive law relative to this subject is in Chapter XXIX.
Motions to grant appropriate relief. General. At the end of the second sentence, “and general atmosphere of prejudice at the place of trial (69e)” was added as another example of objections which may be raised. Motions for appropriate relief must be raised before the conclusion of any Art. 39(a) session held prior to assembly. See 67b.
Change of venue. The title and material is new. See United States v. Gravitt, 5 USCMA 249,17 CMR 249 (1954). The former 69e corresponds to 69f.
Miscellaneous motions for relief. This subparagraph corresponds to the former 69e. In the next to last sentence, “ordinarily” was inserted before “will not be granted”; and the last sentence was added to this subparagraph. These changes were because, under appropriate circum- stances, the prosecution might be required to elect when charges are multiplicious. See United States v. Middleton, 12 USCMA 54, 30 CMR 54 (1960).  I
Procedure if plea of guilty is entered. In the first sentence of the first paragraph of subparagraph (2), “should explain” was substituted for “will explain” to avoid any implication that a failure to explain would result in general prejudice; and “unless it otherwise affirmatively appears that the accused understands the meaning and effect thereof” was deleted as the meaning and effect of a plea of guilty should be explained in any event. In subparagraph (2), the elements of the offense were added as one of the things which should be included in tE. explanation. The last para- graph of subparagraph (2) was deleted. I implied that a guilty plea should be accepted when the accused indicates that he understands its meaning and effect. Subparagraph (3) now gives the standard for accept- ing a guilty plea. See United States v. Dr zke, 15 USCMA 375, 35 CMR 347 (1965). Subparagraphs (4) and (5) are the same as the former (3) and (4).  – I I I
Subparagraph (4) was changed to recognize that a verbatim record of trial need not be prepared in every GCM (see Art. 54). The second paragraph which states that the providence of a guilty plea should be inquired into out of the presence of the members, is new. See United States v. Drake, supra.
The first two sentences of the next to last paragraph were rewritten, but are in substance the same. The fourth sentence of this paragraph in
AGO 20081A

Pam 27-2
Paragraph
by objecting to the admissibility of certain evidence. The doctrine should
be raised by a motion, of course, only when the issue to be precluded
relates to an element of the offense and thus would operate in effect as a
complete bar. However, there may be cases when it is impossible to make
this determination before evidence is presented on the merits. In such a
case, the doctrine could be asserted by objecting to the admission of the
evidence in question. Then, if the objection is sustained and the prosecu-
tion’s evidence is insufficient to establish a prima facie case, motion for a
finding of not guilty may properly be granted. For examples of when the
accused is entitled to invoke res judicata even when it does not amount to
a complete defense in bar of trial, see United States v. Carlisi, 32 F. Supp.
479 (E.D:N.Y. 1940) ; and United States v. Smith, 4 USNCA 369, 15 ClMR
369 (1954).
It should be noted that the. first sentence of the first paragraph
provides that the doctrine of res judicata is applicable even though “the
determination [of the matter] was based upon an erroneous view or
application of the law.” See United States v. Smith, supra. In this
connection, however, the second sentence was added to make it clear that
res judicata applies only to the “matters” determined and not to any
abstract principle of law which may have been the basis for the determina-
tion of the “matter” in a particular case. For example, in a rehearing of a
murder case, the accused may not successfully object to the content of a
self-defense instruction on the ground that a more favorable instruction
had been given at the original hearing. In this situation, there was no
matter decided in favor of the accused but only a principle of law an-
nounced by the MJ.
Also consistent with the broadened concept of this subparagraph, the
third sentence of the first paragraph makes it clear that the invoking of
the doctrine is not contingent upon there having been an acquittal at the
previous trial.
The next to last sentence of the first paragraph now indicates that
the prosecution may not assert the doctrine of res judicata. The former
Manual stated that this was “generally” true but that there was an excep-
tion when a question of judisdiction is raised at a second trial that follows  I
a final conviction of fraudulent separation in violation of Article 83(2).
Article 3 (b) requires that as a precedent to prosecuting for an offense committed before a fraudulent discharge, the prosecution must establish  – I
that the accused has been convicted of violating Article 83(2). The
accused in the second trial cannot attack the fact of that conviction by
showing that his discharge was not fraudulent. This is not really an
exception to the rule that the prosecution may not invoke res judicata.
Although it does concern res judicata in a very narrow sense, it really
stands for the proposition that a judgment is not subject to collateral
attack. Accordingly, this subject is now covered as a matter of jurisdic-
tion in 68b (2).
Consideration was given to United States v. Doughty, 14 USCMA
540, 34 CMR 320 (1964) in which the Court held that the phrase “same
parties” as used in 71b of the 1951 Manual is not limited to the particular
accused and the Government and that when the crime involved is impossi-
ble of sole commission but requires concurrence of intent or action be-
tween two or mlore parties, aldjudication of iasues in la trial of one of these
essential parties may be raised by another who was not joined in the first
AGO 2008lA

Pam 27-2
Paragraph
bined rehearing. The reason for this is that the members of the court are
not advised of the offenses which are being reheard for sentencing only
until. after announcement of the findings on the specifications being re-
heard on the merits. The additional challenges for cause are permitted
because it would be improper to voir dire the member at the usual time as
to the specifications which are not being reheard on the merits. Also, the
members of the court would not be aware themselves of any disqualifica-
tions as to these specifications until after findings.
Examination of record of former proceedings at a rehearing or new
or other trial. A cross reference to 81b (2) was added as a second sentence
in order to clearly indicate that an exception to the general rule, as
expressed in the first sentence of the subparagraph, exists in the case of a
rehearing on the sentence. See the fifth sentence of 81b(2). On rehearing,
permits MJ to read prior record in its entirety.
Sentence rules for rehearings and new and other trials. This subpar-
agraph was substantially changed. The title was changed from “Sentence”
to “Rules rehting to sentence” on the basis that the new title is more
appropriate for the matter contained in this subparagraph. Also, it was
subdivided into subparagraphs (1) and (2). The significant features of
these subparagraphs are discussed below.
Sentence rules for rehearings and new trials. The major innovations
herein are the provisions for sentence rules for the three types of rehear-
ings.
The first paragraph makes it mandatory to advise the court of the
maximum sentence which is imposable in accordance with the same
change made in 76b(l). Formerly, the first sentence of 81d erroneously
indicated that the court should be advised of the sentence adjudged at the
original trial. This was corrected, and, in the third paragraph, an admoni-
tion against doing this has been added. United States v. Eschmann, 11
USCMA 64,28 CMR 288 (1959).
The first sentence of the second paragraph prescribes that the maxi-
mum sentence authorized at a rehearing or new trial is limited by the
legal sentence adjudged upon a previous trial or hearing as ultimately
reduced by the convening or other proper authority when any such action
has been taken. Should the Court of Military Appeals reverse a Court of
Military Review by holding that the court erred in affirming only a por-  I
tion of the findings and sentence as approved by the convening authority,
there would not be an “ultimate” (valid) reduction which would limit the
maximum sentence at a subsequent trial for the same offenses. In this
instance, the maximum permissible sentence at a subsequent trial would
be that which was approved by the convening authority. See United
States v. Russo, 11 USCMA 252, 355, 29 CMR 168, 171 (1960); United
States v. Jones, 10 USCMA 532, 28 CMR 98 (1959) ; United States v.
Dean, 7 USCMA 721, 23 CMR 185 (1957). The word “legal” was included
in the sentence to indicate another exception to the rule expressed therein,
that is where a court fails to return a mandatory punishment. Such a
failure results in an illegal sentence. The significance of the use of “by the
convening or other proper authority” is that any sentence reduction under
Article 74 would be applicable to rehearings and new trials. Frequently
these reductions take place prior to the completion of appellate review,
and this conforms with the language used by the Court in United States v.
AGO 20081A

Pam 27-2
Paragraph  example, it is now clear that crediting is not required if an accused served a term of confinement on an original sentence, and the sentence at the rehearing only includes a punitive discharge. Also see the discussion of changes in llOf (Chapter XXI), infra, where the same change was made in regard to sentences adjudged at a new trial.
Action on a new trial. The content of this subparagraph is a new addition which provides that the action of the convening authority on a new trial will conform to the rules set forth in 89c(7) (a) for rehearings, insofar as authorized and practicable. The purpose of this addition is to furnish needed guidance on new trials. The cross references in the second sentence to various subparagraphs of 110 pinpoint provisions in 89c (7) (a) which are not applicable in new trials.
Orders and related matters in general. The first paragraph is a new addition. It was added to provide needed flexibility. This addition author- izes each service to establish its own procedures in the interest of greater efficiency should any service desire to do so.
Orders issued subsequent to initial action of the convening authority. This subparagraph was revised to make it clear that the authorities men- tioned herein do not have the power to take all of the actions indicated by the cross references. The fact that this subparagraph was misleading is well illustrated in the recent case of United States v. Lock, 15 USCMA 574, 577, 36 CMR 72, 75 (1966) where the Court cited 90b(2) for the proposition that “Subsequent actions on the same record may be taken by any officer actually exercising general court-martial jurisdiction over the accused.” Of course, this is not factually correct. For example, after the initial action of the convening authority, subsequent clemency actions may be taken by the general court-martial authority only when the Secre- tary concerned has delegated his power under Article 74(a). The last sentence was changed to include the requirement of promulgating orders in certain instances involving deferments and rescissions thereof.
Summary court-martial orders and related matters. All reference to “three” copies of the summary court-martial record of trial was deleted, and the first sentence of the first paragraph was reworded to state that a summary court promulgating order “need not be” rather than “is not” issued. The requirements in the last sentence of the first paragraph re-garding copies of the record of trial were made inapplicable when a promulgating order is used.  ,
The former second paragraph of this subparagraph was deleted. This paragraph dealt with the numbering of summary court records which is a subject more appropriate for regulations. Also, numbering is unnecessary if a promulgating order is used.
Disposition oy general court-martial records and related matters. The words “two signed copies of” were deleted before the words “the review” in the latter portion of the first sentence of the second paragraph. This is consistent with a similar change in 85d and provides greater flexibility in that the services vary as to requirements for number of copies and distri- bution of reviews.
Disposition of special court-martial records and related matters. This subparagraph was completely revised in the interest of clarity. The for- mer subparagraph simultaneously discussed those cases that included a bad-conduct discharge and those that did not. This provided a confused
AGO 20081A

Pam 27-2
Paragraph
93  Paragraph is amended by adding a statement to the first paragraph to
the effect thak the place of confinement. will be designated in the action or
order rescinding a previously granted deferment of confinement.

Pam 27-2
Paragraph
which are no more than “fishing expeditions” nor entitle the defense to
materials which are the “work product” of the prosecutor. See Hickman
v. Taylor, 329 U.S. 495 (1947) and Saunders v. United States, 316 F. 2d
346 (D.C. Cir. 1963) for discussions concerning materials which qualify as
being the “work product” of an attorney and thus immune. from discovery.
Issuing, serving, and returning of civilian witness subpoenas. The
first sentence of the last paragraph is a new addition. It was added in the
interest of completeness and to remove the inference that the commander
does not have full subpoena powers in occupied friendly territory in some
instances. He does have these powers in occupied friendly territory if the
local courts are not capable of functioning. See U.S. Department of the
Army Field Manual No. 27-10, The Law of Land Warfare, paragraphs  –
354 and 362 (1956) [hereafter cited as FM 27-10]. The paragraph should
not be interpreted as inferring that the functions of local government are
not restored to local officials as soon as possible even in occupied enemy
territory. See Geneva Convention Relative to the Treatment of Civilian
Persons in Time of War, 12 August 1949, Arts. 54 and 64; FM 27-10,
paragraphs 370 and 373. Additionally, the former paragraph was not
broad enough to cover the situation when our forces are located in a
foreign nation by consent of that nation and must abide by any agree-
ments relative to witnesses. For example, see North Atlantic Treaty Or-
ganization Status of Forces Agreement, 19 June 1951, T.I.A.S. No. 2846,
Art. VII 6 (a).
Warrant of attachment for a civilian witness. The second paragraph was modified to indicate that this process should be effected through a  I
civil officer of the United States when practicable. This procedure is
considered more satisfactory than having a military officer become in-  ,
volved in this manner with civilians, and it conforms with the procedure
prescribed in Article 47 for the prosecution of civilians in a United States
district court for failure to obey a subpoena. Also see 28 U.S.C. $ 547(b)
as to the duty of U.S. Marshals in this regard.
Employment of experts. The first sentence is a new addition which
was added to provide flexibility.
Consideration was given to deletion of the last sentence, ‘but it was
retained to warn counsel that they must obtain a previous authorization
in order to have expert witness fees paid; also, publication of the Manual
in the Federal Register puts any expert on notice that this previous
authorization is required. The basic rule that expert witness fees cannot
be paid upon a retroactive authorization was laid down in Ms. Comp.
Gen., B-49109,25 June 1945.
Depositions. This paragraph was substantially modified. This was
necessary in order to provide a coherent and well organized treatment of
the subject. A study of the former paragraph indicated that there was
unnecessary repetition, for example, in the former second sentence of the
second paragraph of subparagraph g and the former second sentence of
the first paragraph of subparagraph b. It was also found that some
provisions which should have been made applicable to both types of depo-
sitions were only made applicable to one, for example the provisions as to
civilian witness fees in the former last sentence of the first paragraph of
subparagraph d. In revising the paragraph it was felt necessary to have
one subparagraph which stated the rules applicable to both types of depo-
sitions. Also, it was felt that a subparagraph was needed for each type of
AGO 20081A

Pam 27-2
Paragraph  The last sentence in the fifth paragraph is a new addition which provides that a tie vote by the court members on a preliminary contempt ruling is a determination in favor of the person who is being proceeded against. Formerly, appendix 8b indicated the contrary which conflicts with Article 52(c). This change is also a practical solution since a two- thirds vote by the court members is required to hold a person in contempt.
The former last sentence of the last paragraph was deleted.

Pam 27-2
Paragraph
bent on the prosecution to introduce evidence to prove the sanity of the
accused when the question of sanity becomes an issue in a case. This
inference has been removed by rewording as it was not legally correct. An
issue of insanity may be raised, the prosecution may present no rebuttal
evidence, and the court may justifiably convict on the basis of no reasona-
ble doubt as to the sanity of an accused because the court properly gave
Tittle or no weight to the evidence tending to indicate insacity. United
States v. Carey, 11USCMA 443, 29 CMR 259 (1960). See also McDonald
v. United States, 312 F. 2d 847, 850 (D.C. Cir. 1962) ; United States v.
Johnson, 3 USCMA 725,14 CMR 143 (1954).
Modification was also made in this subparagraph (sixth sentence) to
indicate that if, in the light of all the evidence, including the “inference”
rather than the “presumption” of sanity, there is a reasonable doubt as to
the mental responsibility of the accused at the time of the offense, the
court must find the accused not guilty. This change was dictated by the
decisions in United States v. Walters, 3 USCMA 732, 14 CMR 150
(1954) ;United States v. Johnson, Suva; and United States v. Biesak, 3
USCMA 714, 14 CMR 132 (1954). In mentioning the inference of sanity
in this regard, a cross reference to 138a(2) was added. The material
referenced discusses inferences in general and the inference of sanity
specifically.
The present next to the last sentence in this subparagraph is a new
addition which covers proper findings when there is a reasonable doubt in
regard to the ability of an accused to entertain the requisite actual knowl-  I
edge, specific intent, or premeditated design to kill because of a partial
mental impairment. This addition was necessary because of the new mate-
rial contained in 120c.
Procedure for inquiry and determination of sanity by the court. This
subparagraph was completely revised for the purpose of presenting a
more explicit and orderly presentation of the information contained
therein. Although not specifically mentioned in this subparagraph, it
should be remembered that the defense may request additional time to
obtain evidence of the mental condition of an accused by moving for a
continuance. Such a motion is disposed of in the same manner as pre-
scribed in 58e for delays requested for other reasons. In this regard, see
United States v. Borsella, 11USCMA 80, 28 CMR 304 (1959), and United
States v. Frye, 8 USCMA 137,23 CMR 361 (1957).
Subparagraphs (2), (3), and (4) have been revised to reflect the
changes in Art. 51(b) making the ruling of the MJ final on all interlocu-
tory questions other than the factual issue of mental responsibility, as
distinguished from the former law under which his ruling was not final
on any question of the accused’s sanity. Thus, the ruling of the MJ on the
mental capacity of the accused and on whether to inquire into his mental
capacity or mental responsibility is final. If a factual question is present
in determining capacity or inquiry, it would not be the “factual issue of
mental responsibility.”‘
The ruling by the president of a SPCM without MJ still is subject to
objective by any member on the factual issues of mental responsibility
and mental capacity. The finality of the president’s ruling on the question
of whether an inquiry should be ‘made into either of those issues depends
on the nature of the issue. In most situations the issue is a legal one, on
which he Mxla finally. If the issue is one of fact, hbwever, his #ruling is
AGO 20081A

Pam 27-2
Paragraph
second sentence of the first paragraph was revised to accommodate the
examples concerning rebuttal of issues raised by the defense.
The new second paragraph states that the military judge or special
court-martial president should instruct the court members concerning any
limitations upon the purpose for which evidence of this kind may be
considered. See United States v. Donley, 15 USCMA 530, 36 CMR 28
(1965) ; United States v. Conrad, 14 USCMA 344, 34 CMR 124 (1964);
United States v. Back, 13 USCMA 568,33 CMR 100 (1963).
The last paragraph was rewritten to indicate that evidence of other
offenses or acts of misconduct of the accused not amounting to proof of
conviction thereof is not admissible merely to impeach his credibility as a
witness, but that if evidence of this kind is admissible independently of
impeachment it will also be admissible to impeach the accused’s credibil-
ity, provided it has a tendency to do so. See United States v. Kindler, 14
USCMA 394, 34 CMR 174 (1964); United States v. Robertson, 14
USCMA 328, 34 CMR 108 (1963). It has also been pointed out in this
paragraph that when under certain circumstances evidence that the
accused was convicted of crime is admissible only for the purpose of
impeaching his credibility as a witness, an instruction to this effect should
be given. United States v. Moore, 5 USCMA 687,18 CMR 311 (1955).
Evidence of habit or usage. This subparagraph is new. Generally
speaking, it was taken from Rules 49 and 50 of the Uniform Rules of
Evidence. See also Hambrice v. F. W. Woolworth Company, 290 F. 2d 557
(5th Cir. 1961) ; United States v. Vandersee, 279 F. 2d 176, 180-181 (3d
Cir. 1960) cert. denied, 364 U.S. 943 (1961) ;Wigmore, § 92.
Hearsay rule. In the first sentence, the word “hearing” was substi-
tuted for the word “trial,” for testimony given at a former trial would be
admissible in the instant hearing, if at all, under an exception to the
hearsay rule. The word “hearing” is also used in the definition of the
hearsay rule given in Rule 63 of the Uniform Rules of Evidence, which is
the same as the rule in the former Manual and in this revision. In the
second sentence, a new definition of the word “statement” was adopted,
and this is the definition used in connection with the hearsay rule in Rule
62(1) of the Uniform Rules of Evidence. The last sentence in the state-  (
ment of the rule was added to make it clear that this revision retains the
rule found in the former Manual generally prohibiting the use as substan-
-.e evidence of repudiated, or not adopted, inconsistent statements made
our; of court (see 153b(2) (c) in MCM, 1951, and in this Manual) and that the contrary “exception” to the hearsay rule found in Rule 63(1) of the  I
Uniform Rules of Evidence has not been adopted. It is recognized that
there is considerable argument concerning this matter. See the discussion
in United States v. DeSisto, 329 F. 2d 929 (2d Cir. 1964), cert. denied, 377
U.S. 979 (1964), and see Douglas v. Alabama, 380 U.S. 415 (1965), which
deals only with the confrontation clause of the Sixth Amendment as
applied to the States. However, it hardly seems proper in criminal cases
to allow inconsistent statements of a kind which are not themselves inde-
pendently within a hearsay exception to come in as substantive evidence.
To do so would practically destroy the hearsay rule, and, for example,
depositions and former testimony would be admissible against the accused
as substantive evidence even when the witness testifies in court, if the
witness has repudiated such a former statement in his testimony. The
conventional rule is stated in Community Counselling Service, Inc. v.
AGO 20081A

Pam 27-2
Paragraph
no longer used in describing the limits of the operation of Article 31(b),
although that article will not apply unless there is an “official” interroga-
tion or request. United States v. Beck, supra. The second sentence of the
third paragraph is derived from the law of Miranda v. Arizona, supra,
pertaining to the right to remain silent, as that law will apply in a
court-martial trial of an accused who has been subjected to custodial
interrogation by domestic civilian authorities as an accused or suspect.
The third sentence expresses another facet of the Miranda case (at
473-474). In this sentence, the words “and that desire remains in ‘effect”
are included in recognition of the fact that an accused who has once
invoked his right to remain silent may later freely and voluntarily change
his mind. Of course, Miranda (at 473-474) requires that an interrogation
cease once this privilege is invoked except when the accused has counsel
present and there is no overbearing (n. 44 at 474). However, there is no
indication that this was intended to preclude an accused from changing
his mind even if this change of mind was expressed upon subsequent
inquiry as to whether there has been a change of mind, so long as there is
no improper influence exerted. The exception in footnote 44 of Miranda
was intentionally omitted for several reasons. It would be unfair and
illogical to give the suspect who desires to remain silent and does not
desire counsel advantage over the suspect who desires to remain silent but
also desires counsel. The former could not be interrogated, but the latter
would be subject to interrogation when counsel is present and there is no
overbearing. Also, a danger of this exception is that it could lead to the
practice of automatically providing an appointed counsel in order to inter-
rogate a suspect who is expected to invoke his right to remain silent.
The fourth paragraph sets forth the rules as to the warning of
the right to assistance of counsel. These rules are a result of the decision
in Miranda, supra, which was followed by the United States Court of
Military Appeals in United States v. Tempia, 16 USCMA 629, 37 CMR
249(1967). See also People v. Kelley, 424 P. 2d 947 (Cal. 1967). As to the
necessity for an affirmative showing of the waiver of the right to assist-
ance to counsel and to remain silent when counsel was not present at the
interrogation, see Miranda, at 475 and Tempia, 16 USCMA at 638, 37
CMR at 258.
As to the first sentence of the fifth paragraph, see Miranda, at 468,
471. Article 31(d) had already demanded this result as to a violation of
the warning requirement of Article 31 (b). The last sentence, as it applies
to Article 31(b), reflects the decision in United States v. Howard, 5 USCMA 186, 17 CMR 186 (1954). Other aspects of that sentence are  I
inherent in certain reservations in Miranda (see n. 45 at 476).  a  –
The first sentence of the sixth paragraph is taken from the case of
Westover v. United States, decided with Miranda, at 494. The second
sentence is a cross reference which supplants the eighth paragraph of the
former 140a, which no longer can be considered as stating a correct rule
of law. Murphy v. Waterfront Commission, 378 U.S. 52 (1964).
The seventh paragraph is a substitute for the fifth paragraph of 140a
in the former Manual, as that paragraph has been affected by Miranda,
supra. Miranda (at 476) prohibits any distinction between confessions
and admissions with respect to the order of proof. Also, the material
concerning declarations of the accused that his statement was voluntary
was omitted, for these declarations normally consist of written statements
AGO 20081A

Pam 27-2
Paragraph
only raise a “jury inference” of the truth of the essential facts admitted,
and the Smith case is authority for the principle that if the prosecution
desires to use the accused’s statement as evidence to establish a particu-
lar essential fact, that essential fact must be corroborated by independent
evidence. Although both cases involved offenses in which there was no
tangible corpus delicti, the Court did not, in announcing its new rule,
state that the rule applied only to this type of offense-that is, it did not
indicate that the old “corpus delicti” rule would continue to be applied to
offenses in which there was a “tangible” corpus delicti, if there is, in fact,
any real distinction to be drawn. The new rule is entirely different from
the corpus delicti rule found in the former Manual. Under the Opper and
Smith rule, all that is required is that there be independent evidence
raising a “jury inference” of the truth of the matters stated in the
confession or admission, in other words, actual corroboration of the state-
ment; whereas under the so-called “corpus delicti” rule the confession or
admission is completely disregarded until such time as it is shown inde-
pendently that the offense in question has “probably been committed by
someone.” There are a large number of offenses in which the “corpus
delicti” rule will not work at all-those in which there is no tangible
corpus delicti (see United States v. Mirns, 8 USCMA 316, 24 CMR 126
(1957)-and even when there is a tangible corpus delicti the older rule
would seem to be illogical and unsound. The main purpose should be to
corroborate the confession or admission so that one will be reasonably
assured that it is not false, and not to set up an arbitrary requirement for
some outside proof of the corpus delicti as such. Under the Opper and
Smith rule, corroboration of a confession would supply evidence not only
that the offense was committed by someone but also that it was committed
by the accused, which would seem to be a most desirable method of
corroboration as to any kind of offense. This corroboration can be sup-
plied by the circumstance of the independent facts dovetailing with the
admitted facts, and an example of such a dovetailing was included in this
subparagraph. This theory of corroboration was expressly adopted in
United States v. Waller, 326 F. 2d 314 (4th Cir. 1963), cert, denied, 377
U.S. 946 (1964). Although not specifically mentioned, at the request of the
defense, the members of the court should be instructed that they must  I
determine whether the confession or admission has been sufficiently corrob-
orated, and this is so whether or not the corroborative evidence appears
to be ambiguous, impeached, or contradicted. See Weiler v. United States,
323 U.S. 606 (1945); Spaeth v. United States, 218 F. 2d 361 (6th Cir. 1955); cf. CM 410628, Kisner, 34 CMR 588 (1964), rev’d on other  I
grounds, United States v. Kisner, 15 USCMA 153, 35 CMR 125 (1964). It
seems clear that corroboration is, upon request by the defense, a jury
question under the Opper and Smith rule. In Opper the Court stated that
the independent evidence must raise a “jury” inference of truth, and the
Supreme Court has always held that matters of corroboration are for the
jury and not for final determination by the judge. Weiler v. United States,
supra. The last sentence of the subparagraph states that the rule requir-
ing corroboration does not apply to statements which are made prior to or
“contemporaneously” with the act, nor does it apply if the statement is
admissible under some rule of evidence other than that pertaining to the
admissibility of confessions and admissions. See United States v. Villa-
senor, 6 USCMA 3,19 CMR 129 (1955).
AGO 200818

Pam 27-2
Paragraph
The new subparagraph (c) entirely revises that part of the former
third paragraph of 143a(2) which dealt with copies of official records.
The revision was made primarily to parallel the language of Rule 44 of
the Federal Rules of Civil Procedure, which rule is adopted by Rule 27 of
the Federal Rules of Criminal Procedure, and to provide for written
“translations” of machine, electronic, or coded official records. Of course,
the new subparagraph deals only with that part of Rule 44 which pro-
vides for evidencing the official record by a copy or by an official publica-
tion, the matter of authentication being covered in considerable detail in
1433(2). The former requirement that the record be kept on file in a
“public office,” a matter also mentioned in the former Rule 44 but not in
the new Rule 44, effective on 1 July 1966 (see U.S.C.A., 1966 Pocket
Part), was omitted, for it seems generally agreed that this is not a valid
requirement, so long as the record is in fact an official record kept in
official custody. Many records are not open to public inspection, and this is
certainly true in the military, but these records are nevertheless entitled
to the inference of regularity governing official activities. See Banco de
Espana v. Federal Reserve Bank of New York, 114 F. 2d 438 (2d Cir.
1940) ; Wigmore, 5 1632; Comment, Rule 63(15), Uniform Rules of Evid-
ence. Consequently, the term “public office” has been dropped from use
throughout paragraphs 143,144, and 147.
The fourth sentence of (c) provides a solution to the problems en-
countered in this age of automation and their effect on the law of evi-
dence in relation to official records, a solution previously provided for
business entries relating to public banking activities by amendment of
paragraph 143a(2) of the 1951 Manual. See Exec. Order No. 11009, 27
Fed. Reg. 2585 (1962). As in the world of private business, automatic
data and record processing systems have been adopted throughout the
Armed Services for use in areas including military operations, intelli-
gence, research and development, engineering, and, more importantly for
the purposes of the rules of evidence, business and personnel data. The
latter category embraces the familiar problems of supply and personnel
accounting which are the most common types of records used in courts-
martial. Usually these automated official records, as well as the automated
banking entries previously mentioned, although normally qualifying as exceptions to the hearsay rule either as official records or business entries,  1
are in their original form unintelligible or even intangible, consisting
perhaps of nothing more than electrical impulses. In the latter event, even
the second step in the process, the printing out of a card or the conversion
to a tape, may still result in a “record” or “entry” that is beyond the  I
understanding of a layman. Consequently, unless “interpreters” of auto-
mated official records or of automated banking entries-a type of business
entry frequently used in court–were to spend a large share of their time
on the witness stand, it was necessary to provide for the admissibility of
certified “translations” of these records or entries as an exception to the
best evidence rule, just as the law long ago provided for an exception to
that rule in the case of certified true copies of official records. Also,
although no proposal is made in these changes to make certified copies of
writings other than official records and banking entries admissible as an
exc2ption to the best evidence rule, even as to these writings, when auto-
mated and otherwise admissible, some provision was required for allow-
ing the testimony on the witness stand of an “interpreter” or one who can
authenticate a machine “translation” if the court was ever to receive the
AGO 20081A

Pam 27-2
Paragraph
to take care of those cases in which the original was an official record or
banking entry and, consequently, a reproduction made under the terms of
the statute would also have that status.
The first sentence of the third paragraph sets forth a method of
authenticating a writing as being a business entry by use of an obvious
inference arising out of proof of its origin. Bisno v. United States, 299 F.
2d 711, 718 (9th Cir. 1962). The example of authentication of a notation
of refusal of payment of a check given in this paragraph was added to
paragraph 144c of the 1951 Manual by Exec. Order No. 11009, 27 Fed.
Reg. 2585 (1962). The example is based on the common law rule of
inferred genuineness of replies (see the second paragraph of 143b(l)).
Authority for the statement that the notation on the returned check or
accompanying it, once authenticated, is a business entry admissible under
the Federal business entry statute is supplied by Kite v. United ‘States,
216 F. 2d 802 (4th Cir. 1954).
The fourth paragraph of 144c clearly points out that the best evi-
dence rule applies to business entries and that, unless an exception to the
rule is applicable, a copy of a business entry is inadmissible. When,
however, the copy is itself a business entry or is within an exception to
the best evidence rule, the best evidence rule does not apply. Some exam-
ples of the operation of these principles are given.
The fifth paragraph provides for the admissibility of testimonial
interpretations of machine, electronic, and coded business entries and
certain machine and other “translations” of automated business entries
are not admissible on the same generous basis as certified “translations”
of automated official records.
The last paragraph of 144c in the former Manual was deleted, for
entries of the kind mentioned therein would normally be considered to be  ,
official records under the official record rule as now stated in 144b.
Limitations as to the admissibility of official records and business
entries. Few changes were made in 144d, and only the more important
will be mentioned. The second paragraph has been changed to make it
clear that the official duty to which this paragraph refers is with respect to the fact or event in question, not the whole matter set forth in the record.  1
The statement in the third paragraph of 144d that the limitation dis-
cussed therein does not prohibit the use of records and reports of prelimi-
nary judicial hearings, such as an Article 32 investigation, to prove for-
mer testimony under the former testimony exception to the hearsay rule
is based on United States v. Burrow, 16 USCMA 94, 36 CMR 250 (1966)  l
and United States v. Eggers, 3 USCMA 191, 11 CMR 191 (1953). It is  .
further provided in this paragraph that in addition to the limitation there
mentioned having no application to certain familiar uses of depositions
and records or reports of the kind specified it also does not apply to the
use of these writings merely as an alternative means of proving state-
ments recorded or reported in them-the purpose for which the state-
ments may be received depending on other evidentiary rules (see the last
paragraphs of 145a, b, and c)-and that the limitation does not apply to
the use of records of conviction or imposition of nonjudicial punishment
as proof of the conviction or imposition of punishment when this proof is
otherwise admissible. There are a number of instances in which proof of
the fact of imposition of nonjudicial punishment might be proper. For
example, an accused might desire to show it in defense or mitigation (see
AGO 20081A

Pam 27-2
Paragraph
comparison of the facts in the case with the result, it exists nevertheless and should be specifically recognized. The distinction is recognized in the Keef e case, supra.
Conforming changes have been made in subparagraphs a, b, and c to provide that a document, writing or record is not shown to the members of the court, except for inspection of it by the president of a SPCM without an MJ for the purpose of determining the admissibility of its
contents.
Depositions. In the first paragraph, explanations of some of the sec- tions of Article 49 are given in the light of judicial decisions since the enactment of the Code. The explanation of Article 49(d) (2) was taken from United States v. Mulvey, 10 USCMA 242, 27 CMR 316 (1959) and United States v. Stringer, 5 USCMA 122, 17 CMR 122 (1954). The ex- planation of Article 49(d) (3) was taken from United States v. Miller, 7 USCMA 23, 21 CMR 149 (1956). As to the last sentence, see United Stat.es v. Jacoby, 11USCMA 428,29 CMR 244 (1960).
It is indicated in the second paragraph that it is the legal sentence as it may ultimately have been reduced by proper authority which will con- trol in determining whether the case is still a capital case. See United States v. Russo, 11 USCMA 352, 355; 29 CMR 168, 171 (1960) ; United States v. Jones, 10 USCMA 532, 28 CMR 98 (1959) ; United States v. Dean, 7 USCMA 721, 23 CMR 185 (1957). See also the third paragraph of the discussion of 81d(l) (Chapter XV), supra, for a detailed discussibn of the significance of the terms used in this provision.
In the fourth paragraph, which is the third paragraph in the former Manual, some obviously necessary clarifying matter has been added as to the use by one party of a deposition taken by another party.  I
In the fifth paragraph, the matter concerning waiver of objections by not making them in connection with the taking of the deposition was rewritten in accordance with the opinion of the Court of Military Appeals In United States v. Bryson, 3 USCMA 329,12 CMR 85 (1953).
It is stated in the seventh paragraph that an objection that the accused was not afforded in connection with the deposition an opportunity to be adequately represented by counsel and to confront and cross-exam- ine the deponent (see United States v. Jacoby, supra; United States v. Miller, supra) may be waived by a failure to object on that ground to the introduction of the deposition. See United States v. Howell, 11 USCMA 712, 29 CMR 528 (1960) ;United States v. Drain, 4 USCMA 646, 16 CMR 220 (1954) (not waived because former Manual not clear) ;United States v. Vanderpool, 4 USCMA 561, 16 CMR 135 (1954) (waiver applied to former testimony).  I
The next to the last paragraph is new and contains the caveat that depositions are merely to be read in evidence and are not given to the members of the court for their use in their deliberations. United States v.
Politte, 10 USCMA 134, 27 CMR 208 (1959) ;United States v. Jakaitis, 10 USCMA 41, 27 CMR 115 (1958).
Former testimony. In the first paragraph, it is indicated that former testimony cannot be used if the court in the former hearing lacked juris- diction as to the proceedings. See United States v. Crooks, 12 USCMA 677, 679, 31 CMR 263, 265 (1962); United States v. Vanderpool, 4
AGO 20081A

ment was made by him involuntarily or was not made by him at all, does
not subject himself to cross-examination upon other issues in the case or
upon the truth or falsity of the statement.
Examination by the court or a member. In the first paragraph, it is
stated that in questioning witnesses the court and its members must be
careful not to depart from an impartial role. See United States v. Smith, 6
USCMA 521,20 CMR 237 (1955).
In the second paragraph, it is stated that in questioning a witness
concerning the character of the accused, the court and its members must
confine themselves to matters which could properly be inquired into by the
prosecution. The rules in 138f(2) are thus made applicable to the court
members. Also, a cross reference is made to subparagraph 142d, which
contains a limitation upon the right of the court’s examination of wit-
nesses. In the last paragraph, it is provided that the military judge, or the
president of a special court-martial, may require members to submit their
questions. The reason for this authority is to prevent cases from being
reversed because of over-zealous questioning by court members. See
United States v. Pratt, 15 USCMA 558, 36 CMR 56 (1965) ;United States
v. Marshall, 12 U,SCMA 117, 30 C’MR 117 (1961) ;United States v. Blan-
kenship, 7 USCMA 328, 22 CMR 118 (1956).
Leading questions-Exceptions. In the second paragraph, it is
pointed out that leading questions may always be asked in any situation
in which impeachment is possible. In the next to the last paragraph,
language difficulties are indicated as another reason for permitting the
use of leading questions. CM 347510, Pawlik & Smith, 2 CMR 248 (1951),
rev’d on other grounds, as to Smith, United States v. Smith, 1 USCMA
531,4 CMR 123 (1952).  I
Compulsory self-incrimination. This subparagraph was completely
rewritten in view of the many cases on the question of self-incrimination
which have been decided by the United States Supreme Court and the
Court of Military Appeals since the 1951 Manual was written. In the
second paragraph, it is stated that the witness will not be required to
answer over his objection on the ground of self-incrimination unless it
appears that no answer the witness might make to the question could possibly have the effect of tending to incriminate him. The possibility of a  i
tendency to incriminate is enough under the ruling of the Supreme Court
in Malloy v. Hogan, 378 US. 1 (1964). Of course, the privilege may be
invoked with respect to the laws of any jurisdiction, for the Supreme
Court, in Murphy v. Waterfront Commission, 378 U.S. 52 (1964), aban-
doned the old rule that self-incrimination was to be viewed only with
respect to the laws of the forum. The second and third sentences of the
second paragraph, which in principle are based on the Murphy case, set
forth some instances in which, because of prior proceedings or events, the
answer would not legally be incriminating, although it might otherwise be
expected to be of an incriminating nature. It should be noted that in the
second sentence the witness is required to answer “if he has been granted
immunity” rather than “if because of a grant of immunity . . . he can
successfully object to being tried for the offense as to which the privilege
is asserted” as was stated formerly in the sentence which comprised the
third paragraph of 150b. Under Murphy, the former provision was incom-
plete, and it was considered unnecessary to set out the details of why a
witness is required to testify under a grant of immunity. In Murphy, the
AGO 20081A

Pam 27-2
Paragraph
writing is controlled by him in a representative rather than in a personal
capacity, and an example is given. This rule is from McPhaul v. United
States, 364 U.S. 372 (1960). See also Rogers v. United States, supra; Wild
v. Brewer, 329 F.2d 924 (9th Cir.), cert. denied, 379 U.S. 914 (1964)-
rule applied even to owner of a solely owned corporation; United States v.
Silverstein, 314 F.2d 789 (2d Cir. 1963) ; Rule 25(d), Uniform Rules of
Evidence. The example of an application of this rule was taken from
United States v. Sellers, 12 USCMA 262,30 CMR 262 (1961).
A new paragraph was added with respect to the matter of the applica-
tion of the fruit of the poisonous tree doctrine to derivative evidence
obhained as a result of a statement obtained from the accused by officially
compelling him to incriminate himself. The rule as here stated, in
the first sentence of the last paragraph of 150b, is that which is now the
rule of the Supreme Court as announced in Murphy v. Waterfront Com-
mission, supra, at 103, 105. See also United States v. Carter, supra, as to
the inadmissibility of statements obtained from the accused by anyone
through compelling the accused to incriminate himself. The last two sen-
tences of the new paragraph are based on Rochin v. California, 342 U.S.
165 (1952).
State secrets and police secrets. This subparagraph was considerably
revised principally to furnish a more detailed and accurate discussion of
the privilege pertaining to the identity-and the subsidiary privilege per-
taining to the communications-of informants. See generally Wigmore, §
2374. It is pointed out that the informant’s privilege is no longer applica-
ble once the identity of the informant has been disclosed to those who
would have cause to resent his communication. Roviaro v. United States,
353 U.S. 53, 60 (1957). Also, the privilege is not applicable with respect  r
to an informant the disclosure of whose identify is necessary to the
accused’s defense on the issue of guilt or innocence. Whether such a
necessity exists will depend upon the particular circumstances of each
case, for the Supreme Court has refused to adopt any specific rules in this
area. McCray v. Illinois, 386 U.S. 300 (1967) ; Rugendorf v. United
States, 376 U.S. 528, 534 (1964). See also United States v. French, 10
USCMA 171, 181, 27 CMR 245, 255 (1959) ; United States v. Hawkins, 6
USCMA 135, 140, 19 CMR 261, 266 (1955). Considerable material was  I
added in the last four sentences of the second paragraph to provide a
military substitute for the difficulties sought to be avoided by the Con-
gress in passing the “Jencks” Act (18 U.S.C. § 3500 (1964)), which was
enacted by the Congress on the theory that in Jencks v. United States, 353
U.S. 657 (1957), the Supreme Court might have gone too far in requiring  I
the disclosure of statements made to government agents. It should be
obvious that the Jencks Act was not intended to have, and could not have,
any application to military procedures, since this act prohibits the disclo-
sure of statements of any kind of government witness made to govern-
ment agencies until such time as the author of the statement testifies at
the trial. It is axiomatic that the military practice as envisioned by Con-
gress, in Article 32 and elsewhere in the Code, has always been much
more lenient than civilian practice in permitting pretrial disclosure of the
government’s evidence. At least one reason for the difference between the
military and civilian practice is that vicious gangs of criminals and or-
ganized crime are, for all practical purposes, nonexistent in the tightly
controlled and authoritarian military society, whereas the contrary is true
in the civilian society. To apply the flat prohibitions of the Jencks Act to
AGO 20081A

Paragraph
Evidence which-see subdivision (5) and (6)-with respect to criminal
cases amounts to practically no privilege at all. Considerable thought was
given to incorporating in this subparagraph, and making applicable to all
mental examinations of military accused persons, that portion of 18
U.S.C. $ 4244 (1964) which provides that “No statement made by the
accused in the course of any examination into his sanity or mental compe-
tency provided for by this section [a court-ordered examination as to
mental capacity to stand trial], whether the examination shall be with or
without the consent of the accused, shall be admitted in evidence against
the accused on the issue of guilt in any criminal proceeding.” The idea of
including this material was abandoned, however, in view of the many
complications caused by Article 31(b) and the fact that military mental
examinations of suspects necessarily and officially encompass mental re-
sponsibility for the offense, which would seem to bear upon the “issue of
guilt,” as well as mental capacity to stand trial. Even further complica-
tions become obvious when considering the possible applications of such a
prohibition to the extent of cross-examination of expert witnesses who
have conducted an examination into the accused’s mental responsibility
for the offense. See generally Ashton v. United States, 324 I?. 2d 399 (D.C.
Cir. 1963) ; United States v. Wimberley, 16 USCMA 3, 11, 36 CMR 159,
167 (1966); United States v. Malumphy, 13 USCMA 60, 32 CMR 60
(1962) ;United States v. Shaw, 9 USCMA 267,26 CMR 47 (1958) ;United
States v. Bunting, 6 USC.MA 170,19 CMR 296 (1955).
Certain illegally obtained evidence. The matter pertaining to search
and seizure was completely rewritten due to the many changes effected in
this area by the Supreme Court and the Court of Military Appeals. In
speaking of the kinds of unlawful searches which would cause the exclu-
sionary rule to come into effect, it is pointed out that an unlawful search
conducted, instigated, or participated in by any domestic official, State or
Federal, will be within the rule. Mapp v. Ohio, 367 U.S. 643 (1961) ;
.  ElTcins v. United States, 364 U.S. 206 (1960). As pointed out by the clourt
of Military Appeals and this paragraph, however, the search must be one
conducted in a governmental capacity, and not by an official acting in his
private capacity or by a mere private citizen, to come within the ban.
United States v. Carter, 15 USCMA 495, 35 CMR 467 (1965) ; United
States v. Conlon, 14 USCMA 84, 87, 33 CMR 296, 299 (1963) ; United
States v. Seiber, 12 USCMA 520, 523, 31 CMR 106, 109 (1961). Also, in
view of the fact that the reason for the exclusionary rule is to keep out
evidence obtained in violation of the 4th and 14th Amendments, the rule
would seem to have no application to searches conducted by foreign au-
thorities. See United States v. DeLeo, 5 USCMA 148, 17 CMR 148 (1954).
In the second example given in the first paragraph as to when the
exclusionary rule will apply, it is pointed out that an unlawful search of
another’s premises may be enough if the accused was legitimately present
on the premises. Berger v. New York, 388 U.S. 41 (1967) ; Jones v.
United States, 362 U.S. 257, 265-267 (1967). As further indicated in this
example, the exclusionary rule may also come into effect when there has
been a seizure or examination of property of the accused, the presence of
which was not due to trespass, upon an unlawful search of anyone’s
property, whether or not the accused was present. Jones v. United States,
supra, at 261-264; United, States v. Jeffers, 342 U.S. 48 (1951) ; see
United States v. Aloyian, 16 USCMA 333, 36 CMR 489 (1966), concern-
ing the limitation relating to the presence of the accused’s property not
AGO 20081A

Pam 27-2
Paragraph
part of the accused will be a defense. If, however, the offense requires
only constructive knowledge of a certain fact, that is, the type of knowl-
edge considered to exist when the accused should have known of the fact
in the exercise of the requisite degree of prudence, then ignorance or
mistake as to that fact, to be a defense, must with respect to reasonable-
ness be consistent with the degree of prudence required. For example, if
the degree of prudence required is merely to refrain from being grossly
negligent as to the fact in question, an ignorance or mistake as to that fact which is not grossly unreasonable will be a defense; but it the stand-  !
ard of prudence is ordinary due care then the ignorance or mistake, to be
a defense, must be reasonable in the general sense. In speaking of ignor-
ance or mistake of fact as well as ignorance or mistake of law (154a(5)),
the adjective “honest” was not used in this Manual, for in stating these
rules the use of that adjective is unnecessary and may even be misleading.
See United States v. Pelletier, 15 USCMA 654, 36 CMR 152 (1966). A
feigned ignorance or mistake is, of course, no ignorance or mistake at all.
The question of ignorance or mistake of fact or law should be treated as
being really no more than another way of stating that all the require-
ments of the offense must be established when these requirements are in
issue. Thus, the primary inquiry with respect to ignorance or mistake
should be as to whether knowledge of the matter in question is a require-
ment of the offense and, if so, what kind of knowledge is involved. The
question cannot be properly determined by in vacuo references to such
terms as “mens rea” or by reliance upon deceptively convenient catchalls,
such as the phrase “to constitute a defense, the ignorance or mistake must
be such that the conduct would have been lawful had the facts been as the
accused believed them to be.” The quoted phrase would, of course, be most
inappropriate for application with respect to a conviction of the offense
charged when, because of ignorance or mistake, only a lesser, or an
entirely different offense, was proved. In short, there is no arbitrary
device available for determining this question, but it must be determined
in each case in accordance with the actual nature of the offense at hand.
See United States v. Richardson, 15 USCMA 400, 403, 35 CMR 372, 375
(1965) (“gross indifference” not the same as “gross negligence”) ; United
States v. McCluskey, 6 USCMA 545, 20 CMR 261 (1955) ; Williams,
Criminal Law-The General Part, 5 71 (2d ed., 1961). See also United  ,
States v. Torres-Diax, 15 USCMA 472,35 CMR 444 (1965).
In regard to the constructive knowledge menti’oned above, it does not
depend for its existence upon the presence of any inference of actual
knowledge that may arise from the circumstances of the case, and con-
structive knowledge should not be confused with the proof of actual
knowledge by circumstantial evidence. For a case distinguishing these two
types of knowledge, see ACM S-7959, Sanders, 14 CMR 889 (1954).
Effect of ignorance or mistake of law. The same approach was taken
here as in the discussion of ignorance or mistake of fact. Whether the
ignorance or mistake will be a defense, and the kind of ignorance or
mistake which will constitute the defense, must depend upon the nature of
the offense in question. See Lambert v. California, 355 U.S. 225, reh.
denied, 355 U.S. 937 (1958) ; United States v. Sicley, 6 USCMA 402, 20
CMR 118 (1955). In regard to the third and fourth sentences of the first
paragraph, if the offense is one which requires only constructive knowl-
edge of a certain law or of the legal effect of certain known facts, an
ignorance or ‘mistake as to that l’aw or legal effect must be with respect to
AGO 20081A

Pam 27-2
Paragraph
something to the value of the evidence, for example, when there has been a waiver of the authentication of a purported official record. The last sentence was revised to state that a mere failure to object does not amount to a waiver with respect to the admissibility of evidence except as otherwise stated in the Manual. This change was made to indicate that this subparagraph, being in the evidence chapter, deals only with waiver applying to evidentiary matters and not with waiver of appellate rights, such as the right to have an error considered as being prejudicial on appeal. This latter form of waiver is beyond the scope of this chapter and this Manual. See United States v. Stephen, 15 USCMA 314, 35 CMR 286 (1965) United States v. King, 12 USCMA 71,30 CMR 71 (1960).

Pam 27-2
Paragraph
ley, 13 USCMA 445, 32 CMR 445 (1963) United States v. Duggan, 4 USCMA 396, 15 CMR 396 (1954). The example in the next to last sent- ence is based on United States v. Malone, 4 USCMA 471, 475, 16 CMR 45, 49 (1954). The examples in the last sentence are based, respectively, on United States v. Davis, 2 USCMA 505, 10 CMR 3 (1953); and United States v. Craig, 2 USCMA 650, 10 CMR 148 (1953) ;and United States v. Duggan, supra.
The third paragraph is new. Its first sentence provides as follows: “When the offense charged is a compound offense comprising two or more included offenses, an accused may be found guilty of any or all of the offenses included in the offense charged.” See United States v. Calhoun, 5 USCMA 428,18 CMR 52 (1955).
Attempts. The former first and second paragraphs were combined into the first paragraph. However, the first sentence was rewritten by paraphrasing the language of Article 80(a) to avoid conflict with the statutory definition.
The second paragraph (former third paragraph) was rewritten in view of United States v. Thomas, 13 USCMA 278, 32 CMR 278 (1962), but the substance of the examples was retained. The former first sentence of this paragraph stated: “It is not an attempt when every act intended by the accused could be completed without committing an offense, even though the accused may at the time believe he is committing an offense.” The defense of legal impossibility was limited in Thomas to situations where the intended act is not a crime. In Thomas, where an attempted rape conviction was sustained although the intended victim was dead before the attempt, the defense of legal impossibility would have been available only if rape had not been a crime.
In (b) of the Proof, “under the code” was added to conform with Article 80.
Conspiracy. In the third paragraph, the first sentence was rewritten and the second sentence is new. These changes expand on the pr,oposition that the overt act must be independent of the agreement and incorporate the proposition that the act may coincide or follow it. See United States v. Kauffman, 14 USCMA 283, 34 CMR 63 (1963). The last sentence of the third paragraph is new. In regard to the principle of vicarious liability which it states, see Pinkerton v. United States, 328 U.S. 640 (1946).  I
The sixth paragraph incorporates the substance of its former two sentences, and was expanded to cover the situation where abandonment or withdrawal is after the offense is committed. See United States v. Miasel, 8 USCMA 374, 24 CMR 184 (1957). The last sentence of the sixth para- graph was changed to cover the situation where a new party is added to the conspiracy. See Poliafico v. United States, 237 F. 2d 97 (6th Cir. 1956).  I
The ninth paragraph is new. It addresses itself to the problems created as to convicting an accused when all other alleged conspirators are acquitted. See United States v. Doughty, 14 USCMA 540, 34 CMR 320 (1964) ; United States v. Kidd, 13 USCMA 184, 32 CMR 184 (1962); United States v. Nathan, 12 USCMA 398,30 CMR 398 (1961).
Fraudulent enlistment, appointment, or separation. The Proof transposed so that it is now the last paragraph.  was
AGO 20081A

Pam 27-2
Paragraph
person against whom the acts or words were directed was his superior officer, such lack of knowledge is a defense.” The last clause of this sentence was changed to read “he may not be convicted of a violation of this article.” This change was made consistent with the decision to treat this knowledge as an element, not the lack thereof as a defense.
In the Proof, element (d) was inserted to be consistent with the treatment of knowledge as an element. Element (e) is new and was added for clarity.
Striking or assaulting superior commissioned officer. The first wn-tence of the first paragraph was deleted. It reads as follows :”By ‘superior officer’ is meant not only the commanding officer of the accused, whatever may be the relative rank of the two, but any other commissioned officer of rank or command superior to that of the accused.” This sentence failed to differentiate between officers of different services, and it was unnecessary because the cross references in this paragraph adequately define “his superior commissioned officer.” The phrase in the last sentence of the first paragraph, “he may not be convicted of this offense” was substituted for “is available as a defense” to be consistent with the treatment of this
knowledge as an element, not the lack thereof as a defense.
In the Proof, element (d), “that the accused at the time knew the officer was his superior commissioned officer,” was added to be consistent with the treatment of this knowledge as an element.
Disobeying superior commissioned officer. The second sentence iri the first paragraph was modified to emphasize that a failure to comply through neglect is not a violation of Article 90.  ,
The second sentence of the third paragraph, cross referencing 57b for the manner of determining legality of an order, is new. See United States v. Carson, 15 USCMA 407,35 CMR 369 (1965).
In, the Proof, element (d), “that the accused at the time knew the officer was his superior commissioned officer,” was added consistent with the decision to treat this knowledge as an element, not the lack thereof as a defense.
In the former Manual, there was a paragraph after the Proof, which read as follows: “A command of a superior officer is presumed to be a lawful command.” This was deleted as it was redundant with material in  I
the second clause of the first sentence of the third paragraph.
General discussion of insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer. In the first sentence of the second paragraph, “he may not be convicted of a violation of this article” was substituted for “is a defense to a violation of this article.” This is con-  ! I
sistent with the decision to treat this knowledge as an element, not the lack thereof as a defense.
Assaulting a warrant officer, noncommissioned officer, or petty officer. In the Proof, (c) specifically requires that the victim be the superior of the accused. This is an editorial change rather than one of substance as this is covered by (a)which requires that the status of the victim be proved as alleged. Element (d) is new, and is consistent with the decision to treat this knowledge as an element, not the lack thereof as a defense.
Disobeying a warrant officer, noncommissioned officer, or petty officer. The next to last sentence of the first paragraph was formerly the last paragraph. The new last sentence is a cross reference to 57b for
AGO 20081A

Pam 27-2
Paragraph
In (a) of the Proof after “a certain place,” the words “as alleged” were substituted for “within our zone of operations” to avoid stating a restriction as to place.
False official statements. All of the first paragraph is new except for the first sentence. See United States v. Geib, 9 USCMA 392, 26 CMR 172 (1958); United States v. Washington, 9 USCMA 131, 25 CMR 393 (1958) ; United States v.Aronson, 8 USCMA 525,25 CMR 29 (1957).
The last sentence and the last clause of the next to the last sentence
are new. (1955).  See United States  v. Hutchins, 5 USCMA 422,  18 CMR 46
Suffering the loss, damage, destruction, sale, or wrongful disposition of military property. The Proof was transposed so that it is now the last paragraph.
Wasting or spoiling property other than military property of the United States. In the last sentence of the first paragraph, “culpable disre- gard of foreseeable consequences” was substituted for “disregard for the probably destructive results” for consistency with the definition of “reck- less” stated in 190.
TJnder Proof, (b) is a new addition which was added on the basis of ACM S-9837, Rand, 17 CMR 893 (1954), and ACM 6812, Smith, 12 CMR 725 (1953).
Willfully and wrongfully destroying or damaging other than military property of the United States. The last two sentences of the first para- graph, which define “willfully” and “wrongfully” and advise how “willful- ness” may be shown, are new; and the last clause of the former first paragraph, which stated “but a reckless disregard of property rights may be of such a high degree as to carry an implication of willfulness,” was deleted. See United States v. Bernacki, 13 USCMA 641, 33 CMR 173 (1953).
Under Proof, (b) is a new addition which was added on the basis of ACM S-9837, Rand, 17 CMR 893 (1954), and ACM 6812, Smith, 12 CMR 725 (1953).  I
Drunken or reckless driving. The last two sentences of the second paragraph were substituted for the last sentence of the former second paragraph, which read as follows: “The term ‘vehicle’ is not restricted to motor driven or passenger carrying vehicles nor does it describe only types of land transportation.” See United States v. Webber, 13 USCMA 536,539,33 CMR 68,71 (1963).  I I I
In the Proof, “(c) that the accused thereby caused the vehicle to injure the victim, as alleged,” is new. This was added because alleging and proving an jury as a matter of aggravation authorizes an increase maximum punishment. See United States v. Grossman, 2 USCMA 406, 9 CMR 36 (1953).
Drunk on duty. In the second clause of the second paragraph, “mental or physical” was substituted for “mental and physical” as impairment of either is drunkenness.
Misbehavior of sentinel or lookout. In the Proof, (c) is new. When this offense is committed in an area designated as authorizing entitlement
AGO 20081A

Pam 27-2
Paragraph
The material in the former 197c, entitled Excuse, is covered in 216b and c of Chapter XXIX, Matters of Defense. See comments on 216b and c.
Act inherently dangerous with wanton disregard of human life. This subparagraph was formerly 197f.
A separate Proof section was provided for this type of murder. It was adapted from the Proof section that previously followed 197g and covered all types of murder.
In United States v. Davis, 2 USCMA 505, 510-511, 10 CMR 3, 8-9 (1953), the Court of Military Appeals held that to constitute murder under Article 118(3)-acts “inherently dangerous to othersw-the act of the accused must be dangerous to more than one person. Accord, United States v. Holsey, 2 USCMA 554, 10 CMR 52 (1953). The holdings in these cases have not been specifically implemented in this subparagraph. Follow- ing these decisions, the UCMJ was codified in 1956 as chapter 47 of title 10 of the United States Code and made subject to the definitions and provi- sions of 10 U.S.C. 5 101 which provides that the definitions in sections 1-5 of title 1apply to title 10. 1U.S.C. 8 1 (1964) provides in part that: “In determining the meaning of any Act of Congress, unless the context indi- cates otherwise . . . words importing the plural include the singular . . . .” Although doubt may have previously existed as to whether this provision applied to the UCMJ, it now seems that it does apply. Therefore, the holdings in Davis and Holsey have not beeh specifically included, as- it is felt that the Court of Military Appeals may desire to re-examine those decisions in the light of the subsequent legislative action.
Commission of certain offenses. This subparagraph was formerly 197g. The Proof, which formerly covered the Proof for all types of mur- der, was changed to relate only to felony murders. The paragraph that formerly followed this Proof was more appropriately placed by transposing it so that it is now the second paragraph of 197a.
Voluntary manslaughter. The second sentence of the first paragraph is new, and was inserted in recognition that heat of passion may be produced by fear. See United States v. Bellamy, 15 USCMA 617, 36 CMR 115 (1966).  I 1
The Proof is new. There was no Proof paragraph in the former 198a. See United States v.Walker, 7 USCMA 669,23 CMR 133 (1957).  i
Involuntary manslaughter. In the Proof, (c) was rewritten to be more specific. It formerly read: “. . . facts and circumstances showing that the homicide amounted in law to the degree of manslaughter alleged.” As rewritten it is patterned after the first discussion paragraph of 198b.  I I
Rape. The first sentence of the second paragraph is the same as the former first clause of the third sentence in the first paragraph. The former second clause of this sentence, “but the force involved in the act of pene- tration will suffice if there is no consent,” was deleted, and the proper application of this statement of the law, where the woman’s resistance is overcome through threats or fright or where she is otherwise incapable of consenting, is covered by the second paragraph which was rewritten largely for clarity. See United States v. Short, 4 USCMA 437, 16 CMR 11 (1954).
AGO 20081A

Pam 27-2
Paragraph  In the case of a special defense, on the other hand, the accused does not usually deny that he committed the acts in question but rather con-tends that the acts under the circumstances of the particular case do not constitute a crime because an essential element, such as intent or knowl- edge, is negated, or because the acts are justified or excused. The special defenses of drunkenness and mistake of fact or law are discussed in
154a(3), (4), and (5), respectively. The special defense of mental respon- sibility is discussed in 120b. The remaining special defenses are &wcusssd in 216. When an affirmative defense is in issue, sua sponte instructions thereon are required.
The prosecution has the burden of proving the accused’s guilt beyond a reasonable doubt in every case. Even when special defenses are in issue, the burden of proof with respect to the special defenses leannot be shifted to the accused. See United States v. Lombardi, 14 USCMA 466, 34 CMR 246 (1984) (self-defense) ; United States v. Morphis, 7 USCMA 748, 23 CMR 2112 (1957) (drunkenness) ; United States v. Noe, 7 USCMA 408, 22 CM’R 198 (1956) (.mistake of fact); Unitad Stdes v. Rowan, 4 USCMA 403, 16 CMR 4 (1954) (mistake of fact). The prosecution, how- ever, does not have to present evidence to rebut the evidence of a special defense raised by the accused but may merely argue that the testimony raising the issue should not be believed. See, e.g., Johnson v. United States, 317 F. 2d 127 (D.C. Cir. 1963). The prosecution, of course, if it does not introduce evidence to rebut the evidence of a special defense raised by the accused, may run the risk of not persuading the court.
Former jeopardy. A large portion of this subparagraph was adapted from 68d in MCM, 1951.
The first two sentences of the first paragraph are the same as the first two sentences of the first paragraph in 68d, MCM, 1951. The third sentence of the first paragraph in 68d, MCM, 1951 read as follows :
But the disapproval or setting aside of a finding of guilty as to any charge or specification for lack of sufficient evidence in the record to support the findings of guilty is a bar to rehearing upon that charge or specification (Arts. 63a, 66d, 67e). This sentence was dropped in favor of the balance of the language used in the first paragraph. This was to emphasize that Article 44(b) permits a convening lauthority, bloard of review, and the Court of Military Appeals rbo order a reharing, in aacordanlce with Articles 63 (a),66(b), a@ 67(e), respectively, without placing the accused twice in jeopardy, except when there is a lack of sufficient evidence in the record to support the findings. The second paragraph is substantia.11~ the same as the s,econd par& graph of 68d, MCM, 1951. But see the discussion of changes in 56a, b, and c in chapter X.  . I I I
The third paragraph of 68d, MCM, 1951, was omitted as its material is covered in 215a. It read as follows: “A person has not been tried in the sense of Article 44 if the proceedings were void for any reason, such as lack of jurisdiction to try the person or the offense.”
The third paragraph, which was formerly the fourth paragraph of 68d, contains references to previous trials in foreign courts which are new. See AR 27-10, for the policy of the Department of the Army con-cerning disciplinary action following a trial in a Saarte of foreign court, and see North Atlantic Treaty Organization Status of Forces Agreement, 19 June 1951, T.I.A.S. No. 2846, Art. VII, para. 8, for an example of a
AGO 20081.4

Pam 27-2
Paragraph  charged. The defense does not, for example, deny an alleged injury but raises the issue of whether the injury was the unforeseen consequence of a lawful act done in a lawful manner. See United States v. Torres-Diaz, 15 USCMA 472,35 CMR 444 (1965).
Self-defense. The subject matter in this subparagraph was formerly contained in 197c and 207a. However, that material was completely re- vised in view of the many recent self-defense cases. The provision for a duty to retreat in 197c, MCM, 1951, was omitted in view of United States v. Green, 13 USCMA 545, 33 CMR 77 (1963) ; United States v. Hayden, 13 USCMA 497, 33 CMR 29 (1963); land United States v. Smith, 13 USCMA 471, 33 CMR 3 (1963). Also, the limitations as to meeting force with a like degree of force in 207a, MCM, 1951, were omitted in view of the Green case, the Smith case, and United States v. Acosta-Vargas, 13 USCMA 388, 32 CMR 388 (1962).
In regards to the rules stated in the first and second paragraphs, see United States v. Perry, 16 USCMA 221, 36 CMR 377 (1966) ; United States v. Armistead, 16 USCMA 217, 36 CMR 373 (1966); and United States v. Jackson, 15 USCMA 603,36 CMR 101 (1966).
The first two sentences of the third paragraph are based on United States v. O’Neal, 16 USCMA 33, 36 CMR 189 (1966), and the last sent- ence is based on Acosta-Vargas.
The fourth paragraph is based on the Perry case.
Obedience to apparently lawful orders. This subparagraph was adapted from 197b, MCM, 1951. For a discussion of the civilian authori- ties in this area, see ACM 7321, Kinder, 14 CMR 742 (1954).
Entrapment. The first sentence is based on the following language in Sorrells v. United States, 287 U.S. 435, 442 (1932) : “A different question is presented when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce the commission in order that they may prosecute.” See also Sherman v. United States, 356 U.S. 369, 372 (1958), which cites this language with approval. The defini- tion of “innocent” in the second and third sentences paraphrases language in 21 Am. Jur. 2d Crim. Law § 144 at 214 (1965). The fourth sentence is based on Sorrells at 441 and the fifth sentence on Sherman at 372. The  – I I
last sentence is a reference to 138g(6), which recognizes that the issue of entrapment places the predisposition of the accused in issue thereby mak- ing admissible relevant evidence of previous misconduct by the accused.  I I
Coercion or duress. This subparagraph is based on United States v. Brookman, 7 USCMA 729, 23 CMR 193 (1957) ; and United States v. Fleming, 7 USCMA 543, 23 CMR 7 (1957). Regarding the proposition that tlie defense is inapplicable whep the offense in question involves the killing of an innocent person, see 15 Am. Jr. Crim. Law $ 318 (1938) and 1Wharton, Criminal Law S 384 n.3 (12th ed. 1932).
The dicta in United States v. Margelony, 14 U’BCMA 55, 33 CMR 267 (1963), and United States v. Brookman, supra, to the effect that coercion may require less than fear of death or serious bodily harm when inter- posed as a defense to a minor offense, was not incorporated in this sub- paragraph because of the uncertainties of the law in this area.
AGO 30081A

Pam 27-2
SpecificationNo.:
64  Spying (Art. 106). This form was modified by adding “(in) (about)” and “(control) (jurisdiction)” as selections. These modifications conform with the wording of Article 106 which is stated in the alternative rather than the conjunctive.
Hazarding or suffering to be hazarded any vessel, willfully and wrongfully (Art. 110 (a)). This form is a new addition which was neces- sitated by the fact that all forms in the 1951 Manual were for negligently hazarding a vessel.
Drunken or reckless operation of vehicle (Art. 111). The words “strike and” were placed in parenthesis because the aggravating factor is the injury, and this could occur without striking the victim with the vehicle. See the Table of Maximum Punishments, Section A, 127c, as to Article 111.
Misbehavior of sentinel or lookout (Art. 113).A selection was added for alleging the aggravating factor when the offense is committed in an area where hostile .fire pay is authorized. This is consistent with the addition of this aggravating factor in the proof section of 192 and in the Table of Maximum Punishments, Section A, 172c. See also Exec. Order No. 11317,31 Fed. Reg. 15305 (1966).
Rape and carnal knowledge (Art. 120). This specification was modi- fied to include the proper means of alleging rape when carnal knowledge may be an included offense. See CM 392172, Mosby, 23 CMR 425 (1957).
Robbery (Art. 122). Modified by the addition of “(force) as selections because Article 122 is worded in the alternative.  (violence)”
Forgery (Art. 123). A selection was added to form 93 for alleging the forgery of an indorsement. Experience has indicated that there has been some confusion in the past as to how such an allegation should be set out.
A selection was added to forms 93 and 94 for situations where a document on its face will not clearly operate to the legal prejudice of another. See United States v. Wilson, 13 USCMA 670, 33 CMR 202 (1963) ;United States v. Farley, 11USCMA 730,29 CMR 546 (1960).
Check, worthless (Art. 123a). These new specifications were incorpo- rated from Exec. Order No. 11009,27 Fed. Reg. 2585 (1962).
Sodomy (Art. 125). Selections have been added for alleging the ag- gravating factor when offenses are committed against a child under 16 years of age or by force and without the consent of the victim. This conforms with the same additions in the proof section of 204 and in the Table of Maximum Punishments, Section A, 127c.  I
Assaults aggravated by the status of the victim (Art. 128(a) ). The specifications have been moved under Article 128 from under Article 134. This conforms with the same change made in 207 and the Table of Maxi- mum Punishments, Section A, 127c.
Housebreaking (Art. 130). The words “the property of” were added on the basis of the decision in ACM 5167, Wheat, 5 CMR 494 (1952).
Burning with intent to defraud (Art. 134). This is a new addition which was added because of United States v. Fuller, 9 USCMA 143, 25 CMR 405 (1958).
AGO 20081A

Pam 27-2
SpecificationNo.:  because of the decision in United States v. Demetris, 9 USCMA 412, 26 CMR 192 (1958).
Loaning money at usurious rate (Art. 134). Deleted because of the decision in United States v. Day, 11USCMA 549,29 CMR 365 (1960).
Indecent, insulting, or obscene language communicated to a female or a child under the age of’16 years (Art. 134). Modified to conform with the addition of a punishment in the Table of Maximum Punishments, Section. A, 127c, when the victim is a child. For the reason for this change, see the discussion of changes made in chapter XXV.
Mail, taking, opening, secreting, destroying, or stealing (Art. 134). Both specifications were modified to incorporate specific allegations that the object involved is “mail matter.” See United States v. Lorenzen, 6 USCMA 512,20 CMR 228 (1955).
Obstructing justice (Arb 134). This is a, new apecifimtion. Its ddi-tion ws promoted by United States v. Wysong, 9 USCMA 249, ’26 CMR 29 (1958) ; ACM 17112 (Reh) Daminger, 31 CMR 521 (1961) ; ACM 17112, Daminger, 30 CMR 826 (1960). The language in 18 U.S.C. § 1503 (1964) was used as a guide in drafting the form.
Perjury, statutory (Art. 134). The note which formerly followed this specification was deleted. That note indicated that the offense should be charged as false swearing if the matter falsely stated or subscribed was not material. The deletion is based on United States v. McCarthy,: 11 USCMA 758, 29 CMR 574 (1960) and United States v. Smith, 9 USCMA 236,26 CMR 16 (1958).  I
Public record, altering, concealing, removing, mutilating, obliterat- ing, or destroying (Art. 134). Two “(alter)” selections and one “(steal)” ,selection were added to conform with the descriptilon contained in the Table of Maximum Punishments, Section A, 127c.  I
Refusing, wrongfully, to testify (Art. 134). Selections have been added for changing a wrongful refusal to testify before an Article 32 officer and a deposition officer. See the discussion of the reasons for making the same additions in the Table of Maximum Punishments, Sec- tion A, 127c, as discussed under changes in chapter XXV.
Soliciting another to commit an offense (Art. 134). This new specifi- cation was added because experience has indicated that solicitations of offenses other than those provided in Article 82 are frequently charged. No maximum punishment for this offense was provided in the Table of Maximum Punishments as the punishment should depend on the serious- ness of the offense charged. Therefore, it wm felt best to allow the determination of the proper maximum to be made on the basis of the circumstances in each case under the general rules applicable when a maximum is not provided in the Table. There general rules are contained in 127c(l). Compare the maximum authorized punishments in United States v. Goodnight, 9 USCMA 542, 26 CMR 322 (1958) ; United States v. Haveriland, 9 USCMA 621, 25 CMR 125 (1958) ;United States v. Oaktey 7 USCMA 733, 23 CMR 197 (1957) ;with that authorized in United States v. Wysong, 9 USCMA 249, 26 CMR 29 (1958) ;United States v. Brown, 8 USCMA 255,24 CMR 65 (1957).
Transporting, unlawfully, a vehicle or aircraft in interstate or for- eign commerce (Art. 134). This new specification alleges a violation of the
AGO 20091A

87  Missing movement through glect.  ne- 86  Absence without authority.  United States v. Posnick, 8 USCMA 201,24 CMR 11 (1957)
89  Disrespect toward superior of- ficer.  117  Using provoking or reproachful speech.  ACM 7678, Nicolas, 14 CMR 683 (1954)
90  Drawing or lifting up a weapon or offering violence to supe-rior officer in execution of his  128  Assault, assault with dangerous weapon, assault upon a com-sioned officer.  CM 365376, McGuire, 12 CMR 432 (1953)
office.

90  Willfully disobeying lawful der of superior officer.  or- 89  Disrespect to superior officer.  ACM 9632, Luckey, 18 CMR 604 (1954)
91  Striking warrant, noncommis-sioned, or petty officer in exe- cution of his office.  128  Assault or assault and battery with dangerous weapon.  CM 361544, Rhea, 10 (1953)  CMR  268
91  Assault upon warrant, noncom- missioned, or petty officer in the execution of his office.  128  Assault with dangerous weapon.  CM 361544, Rhea, (1953)  10  CMR  268
91  Treating with contempt or being disrespectful in language or deportment toward warrant, noncommissioned, or petty of- ficer in execution of his office.  117  Using provoking or reproachful speech.  See ACM 7678, Nicolas, 14 CMR 683 (1954)
I  Mutiny-Refusal to obey orders from proper authority in con- cert with others with intent to override military authority.  Willful disobedience of commis- sioned officer. Willful disobedience of warrant, noncommissioned, or petty of- ficer.  CM 365692, Verdone, 13 CMR 468 (1953) United States v. Woolbright, 12 USCMA 450,31 CMR 36 (1961)

AGO 20081A

APPENDIX 17
SUBPOENA FOR CIVILIAN WITNESS

This appendix was modified to no longer infer that it is the general practice to conduct general courts-martial trials aboard ship. No other significant substantive changes were made.
AGO 20081A
By Order of the Secretary of the Amy:
W. C. WESTMORELAND,
General, United States Army,
Official :  Chief of Staff.
KENNETH G. WICKHAM,
Major General, United States Army,
The Adjutant General.
Distribution :
In accordance with special list.

* U.S. GOVERNMENT PRWTING OFFICE :1970 387-521120081

AGO 20081A

 

A Guide to the Coast Guard

A Guide to the Coast Guard

What is the Coast Guard?
A coast guard unit is a national organization, which is responsible for administering various services at sea. The majority of developed nations possess a fully-funded and operation Coast Guard unit; however, the term implies a wide array of responsibilities. For instance, in some countries the Coast Guard takes the form of a heavily-armed military force responsible for exercising various security duties, whereas in other countries the unit is simply a volunteer organization responsible for conducting search and rescue missions without the ability to enforce any legality principles.
In the United States of America, the Coast Guard is both a military and a law enforcement service. The United States Coast Guard is one of the seven components of the uniformed services of the United States and of the five principle elements of the United States armed forces. The United States Coast Guard’s roles primarily include the enforcement of US law, conducting search and rescue missions, and administering coastal defense mechanisms.
During times of peace, the United States Coast Guard falls under the administration of the United States Department of Homeland Security. During wartime; however, the United States Coast Guard may (according to the will of the President) reports to the Secretary of the Navy. That being said, the units resources are integrated into the United States military operations.
The United States Coast Guard maintains a diverse and extensive fleet of coastal and ocean-going patrol ships, as well as an extensive aviation division consisting of helicopters and fixed wing aircrafts. Helicopters in the United States coastguard are equipped with hoists to rescue those in need. Additionally, the United States coast guard plays a fundamental role in law enforcement—the United States Coast Guard helicopters are indispensable tools in fighting illegal drug trafficking rings and control the influx of illegal migrants. The fixed wing aircrafts present in the Coast Guard are typically used for long range search and rescue as well as law enforcement patrols.
 
Military Law vs. Federal Law
The United States Department of Defense operates under Federal Law as per the guidelines expressed within the disbursement of a triune governmental oversight system, which allows for the United States Coast Guard to exist under the jurisdiction of the Executive branch of the government; this results in the appointment of the President of the United States as the Commander in Chief of the entirety of the Armed Forces. However, Military Law – a legal field classified as a subgenre of Federal Law – typically addresses the activity and behavior of military personnel; this can include:
Absent Without Leave (AWOL): The unlawful desertion of a service member with regard to their respective commitment to the United States Coast Guard; individuals deemed to have abandoned positions may be tried by military court and subsequently court martialed.
Martial Law: Martial Law is the instatement of Military rule over specific jurisdictions within a country or nation; in many cases with regard to the implementation of heightened security measures, the United States Coast Guard may be appointed in the event that the acting body of civil law enforcement is unable to maintain sufficient order.
Judge Advocate General (JAG Corps): The JAG Corps – or Judge Advocate General Corps – are classified as the acting legal body within the United states Coast Guard. JAG Corps not only oversee the court martial process, but also are responsible for upholding the maintenance of the protocols and parameters expressed within the UCMJ; in many cases, the legal issues addressed by the acting JAG Corps are specific – these include: war crimes, treason, sedition, refusal to obey orders, undue violence, and offenses directed against military personnel.

Sergeant Stole over $1,000,000 of Government Property

Sergeant Stole over $1,000,000 of Government Property
On November 14, 2012, the US Attorney’s Office for the Eastern District of North Carolina announced that Robert Alan Walker from Fort Bragg, North Carolina, pled guilty to stealing property from the United States and theft of government property.
According to court documents, Walker was a sergeant first class with the Army and assigned to the 525th Battlefield Surveillance Brigade.  He was deployed to the Forward Operating Base-Spin Boldak and Kandahar Air Field in Afghanistan.  During his time in Afghanistan, he was in charge of the Enabler Security Team.
Court documents show that Walker and another military member stole more than $1,000,000 worth of government property from December 2010 to July 28, 2011.  Walker and the unnamed military service member were able to place the government property in military connexes that were shipped back to the United States.
Some of the stolen property includes a laser designator rangefinder worth about $290,000, a Polaris ATV worth about $11,507, two place cutters worth about $10,000 each, and a cargo trailer worth about $8,944.
Walker pled guilty under violation of 18 U.S.C. § 371 and 18 U.S.C. § 641 and 2.  The FBI has not released any information about the length of his sentencing so far.
U.S. Attorney Thomas G. Walker stated, “The theft of sensitive military equipment, such as the lightweight laser designator rangefinder in this case, puts our soldiers at even greater risk than they already are in given the potential for such equipment to fall into the wrong hands.  We owe a duty to our troops to protect them from the greed and criminal misconduct of their peers.”
Special Agent Brandi Little of the Fort Bragg U.S. Army Criminal Investigation Command Office stated: “It is disappointing to see a senior non-commissioned officer abandon the army values and betray fellow soldiers while in a position of trust.”
Source: Federal Bureau of Investigation

Military justice procedure 1945

Military justice procedure 1945

Covere page
l.~ ~~Q
–.'”-..,
‘.I IE’AITlflT TECIIICAL •
Military
JUSTIC
PROCEDURE

Covere page
Covere page
February 1945
1I’.4lt N…JlZN. •

Cover page
WAR DEPARTMENT TECHNICAL MANUAL
TM 27-255

MILITARY·
JUSTICE
PROCEDURE

U.S. War Department
WAR DEPARTMENT FEBRUARY 1945

United States GOrJernment Printing Office jv·
Waskington : 1945
WAR DEPARTMENT WASHINGTON 25, D. C., 23 February 1945 TM 27-255, Military Justice Procedure, is published for the information and guidance of all concerned.
[AG 300.7 (21 Oct 44)]
By ORDER OF THE SECRETARY OF WAR:
OFFICIAL:  G. C. MARSHALL
J. A. ULIO  Ohief of Staff
Major’ Gener’al
The Adjutant Geneml

DISTRIBUTION:
AAF (20) ; AGF (20) ; ASF (2) ; T of Opns (50) ; Def Comd (10) ; AAF Comd (10); S Div ASF (2) ; Tech Sv (2) ; sve (10) ; Area ASvC (5); PC&S (2); PE (5); Sub PE (2); Stg A (4); GH (2); Sch (50); USMA (50); ASTU (2) ; ROTC (2); Proc C (6) ; RC
(2);ReclassC(2);RehabC(2);SepC(2); PWCp(2);A (6); CHQ (4); D (3); B (2); R (2); SBn (2); Bn (2); C (2); AF (10);W (4);G (2);S (2);F (2).
For explanation of symbols, see FM 21-6.
FOREWORD
This manual i~ a practical guide to court-martial and military justice procedure. It is not a substitute for the Manual for Courts-Martial but is intended as an aid in using that book. The Manual for Courts-Martial is a legal work, covering comprehensively, but concisely, the basic law and procedure of military justice. However, officers need to know not merely the legal principles but how to apply them practically in a given situation, what to insert in the blanks on the first page of a charge sheet, for example, or how to state to an accused the effect of his plea of guilty, or how to draft a c~urt-martial order where several.accused have been tried jointly. It is to answer such questions as these that this manu311 is designed. Accordingly, it ,contains numerous appendices, containing a “step by step” outline of trial procedure, a specimen record of trial by general, special, and summary courts martial and examples of all other papers and forms commonly encountered in court-martial procedure. ,
The possible duties which an officer may be required to -perform in connection with the administration of military justice are numerous and varied, as for instance, imposition of punishment under AW 104, serving as trial judge advocate or as summary court, or even as reviewing authority. Doubtless no one officer will have to perform all these tasks. Since any officer, however, inay from time to time be called on to serve in several different capacities, this manual touches on most of the phases ofmilitary justice procedure from the initial question “Is any punishment , required?” to the final action to be taken on a completed case. Some of the material is necessarily legal and technical in nature, such as the discussion of the rules of evidence or the powers of reviewing authority. Although all officers other than members of the JAGD will not have to deal with such-matters, some must have knowledge of these and other technical aspects of the court-martial system. These subjects are covered as simply as possible and practical examples and forms are furnished.
blank page
CONTENTS

CHAPTER 1. GENERAL. Paragraph Page
Military Justice and the Articles of WaL _ 1 1 In general _
la 1 History of the Articles of War _ Ib 1 Nature of the Articles of War _ Ie 2 Crimes and Offenses _
22 Agencies through which Crimes and Offenses Pun­
ished _
33
In general _
3a 3 Nature of courts-martiaL _
3b 3 Classes of courts-martiaL _
3c 3 Manual for Courts-MartiaL _
44
CHAPTER 2. PREVENTIVE AND CORRECTIVE MEASURES.
In General ~ _
55 Disciplinary Instruction _
65
In general _
6a 5 Explanation of the Articles of War _ 6b 6 Discharge Proceedings _
7 6 Noncommissioned Officers _
8 7 Use of Nonpunitive Correctional Measures _ 9 7
CHAPTER 3. DISCIPLINARY PUNISHMENT UNDER ARTICLE OF WAR 104.
Function and Use of Article of War 104_________ 10 8 Offenses Punishable_____ __ _____ __ __________ ___ 11 8 Who May Punish_________ ___ _____ __ ______ _ 12 9 Persons Punishable_ ___ ____________ __ _____ 13 10 What Punishment May Be Imposed____________ 14 10 Authorized punishments___________________ 14a 10 Time limit and apportionment_ ____________ 14b 11 Prohibited punishments ‘_ _____ 14c 11 Procedure for Imposing Punishment____________ 15 n On enlisted men . 15a 11 In the case of officers_____________________ 15b 13 Records of Disciplinary Punishment____________ 16 13 Effect of Disciplinary Punishment______________ 17 13 In generaL______________________________ 17a 13 As a bar to triaL____ ______ __ _ ______ ___ 17b 13 As a previous conviction___________________ 17c 14
CHAPTER’ 4. ARREST AND CONFINEMENT. Paragraph Page
Arrest or Confinement before TriaL ____________ In general_______________________________ Necessity and purpose of restrainL _________
Types of restraint_ ___ __ ____ ____ _ _ Degree of restraint to be imposed___________ Who May Arrest and Confine__________________
Enlisted men c_ ___ Officers·and warrant officers____ ____________
Procedure for Arresting’ or Confining_ ___________ Preliminary inquiry into offense_ ___________ Procedural steps to arrest__________________ Procedural steps to place person in confine­
ment _ Statements and reports required _ Status of Person in Arrest or Confinement _ Status of arrest _ Status of confinement prior to triaL _ Duration and Termination of Arrest and Confine­
ment _
CHAPTER 5. PREFERRING CHARGES.
Charges in GeneraL _
Defini~ons
_ By whom charges preferred _ Necessity for inquiry before preferring charges_ Promptness in preferring charges _ Additional charges _ Selection of Charge _ General _ Multiplication of charges ‘ _ Combining charges of serious and minor
offenses _
~
Joint charges _
Drafting Charges and Specifications _ The charge • Specifications, in generaL _
Abbreviations _ Serial numbers _ Description of persons _
Dates ~ __ Details _ Value _ Severallarcenies _
Examples of correct and incorrect drafting _ Numbering charges and specifications _
Preparation of Charge Sheet _ GeneraL , _ Name, etc., of accused _ Age of accused _ Pay of accused _ Service of accused _’ _ Data as to witnesses, etc _
Data as to rest~aint of the accused _
18
18a,
18b

18c
18d
19

19a 19b
20
20a.
20b

20c
20d
21
21a
21b

22

23
23a
23b
23c
23d
23e

24
24a
24b

24c
24d

25 25a 25b 25c 25d 25e 25f 25g 25h 25i 2Sj 25k 26 26a 26b 26c 26d 26e 26f 26g
15
15
15
15
15
16
16
16
17

17
17

17

17

18
18
18

19

20
20
20
20
21
21
21
21
22

22
23
23
23
24
24
25
25
25
25
25
25
26
26
26
26
26
27
27
27
27

27

CHAPTER 5. PRE~ERRING CHARGES-Continued. Paragraph Page
Preparing Joint Charges_______________________  27  28
Signing and Swearing to Charges  ~ ___ ____  28  28
Evidence of Previous Convictions_______________ General ~_________________  29 29a  28 28

Convictions whichshould be included_ ______ Where no admissible previous convictions____ Statement of Evidence upon which Charges
Based_____________________________________
Letter of TransmittaL ________________________
Submission of Charges to Immediate Commander
of Accused_________________________________
Forwarding Charges,_ ____________ _____________
CHAPTER 6. ACTION UPON CHARGES.
In General _
Dismissal of Charges and Action under AW 10L_
DismissaL _ Action under AW 104 _ Renumbering of charges and specificatioDs _ Making Changes and Corrections in Charges _ Reference to Trial by Inferior Court _
Policy _
Procedure _
Forwarding Charges to Authority Ha,ving General
Court~Martial Jurisdiction
Reference to investigating officer Action after investigation Forwarding charges where general
martial not recommended Action by officer exercising general
martial jurisdiction Suspected Insanity Suggested Time Standard
Charges
CHAPTER 7. INVESTIGATION OF CHARGES.

_ _ _ court _ court­_
~————–­
for Disposition of
_
Purpose and Scope of Investigation Under AW 70_ Preliminary Procedure upon Receipt of Charges__ Investigation Proper ~——-_
Preparation of Summaries of Expected Testimony_
Witnesses _ Statement of Accused _ Sufficiency of Evidence to Sustain the Charges _
GeneraL _ Lesser included and related.offenses _ Recommendation as to Disposition of Case _
Report of Investigating Qfficer _ Contents ——­Documents and other. evidence _
Explanatory remarks _ Inveetigation of the Case of Private Bark _
29b 29 29c 29
30 30 31 30
32 30 33 31
34 32
35 32
35a 32
35b 32
35c 32
36 33
37 33
37a 33
37b 34
38 34 38a 34 38b 34
38c 35
38d 35 39 36
40 36
41 37 42 37 43 37 44 38 44a 38 44b 39 45 39 45a 39 45b 39 46 40 47 40 47a 40 47b 41 47c 41 48 41
CHAPTER 8. APPOINTMENT AND JURISDICTION OF COURTS·
MARTIAL.
Paragraph Page

Appointment in GeneraL _
49 43

Who may Appoint General Courts-MartiaL _ 50 43

Who may Appoint Special Courts-MartiaL _ 51 43

Post, station, and regimental commanders _ 51a 43

Other commanding officers _
51b 44
Reservation by superior authority of power toappoint _
51c 44

Who may Appoint Summary Courts-MartiaL _ 52 44
General _

52a 44
Reservation by superior authority of power to appoint _
52b 45

Courts Appointed by “Accuser” or “Prosecutor” _ 53 45

General and special courts martiaL _ 53a 45

Summary courts-martiaL _ 53b 45

Composition of Courts-MartiaL ~ _ 54 46

Who may serve as members _ 54a 46

Number of members _
54b 46

Experience and qualifications of members _ 54c 46

Orders Appointing Courts _ 55 47

Preparation _
55a 47
Detail of members _
55b 47

Amending orders _
55c 47

Dissolving court _
55d 48

Withdrawing cases from old court _ 55e 48

Jurisdiction in GeneraL _
56 48

Jurisdiction of General Courts-MartiaL _ 57 48

Jurisdiction of Special Courts-MartiaL _ 58 48

As to persons _
58a 48
As to offenses ~ _
58b 48

As to punishments _
58c 49

Jurisdiction of Summary Courts-MartiaL _ 59 49

As to persons _
59a 49

As to offenses _
59b 50

As to punishments. _
59c 50
CHAPTER 9. SUMMARY COURT OFFICERS.
Nature and Functions of Summary CourL _ 60 51

Selection of Summary Court Officers _ 61 51

Duties of Summary Court Officer before TriaL _ 62 52

Conduct of TriaL _
63 53

Explanation of accused’s rights _ 63a 53

Arraignment and pleas _ 63b 53

Conduct of trial proper _ 63c 53

Findings and sentence _ 63d 54

Duties of Summary Court Officer after TriaL _ 64 54

CHAPTER 10. TRIAL JUDGE ADVOCATE.
Functions and Duties in GeneraL _ 65 56

Preliminary Duties before TriaL _ 66 57

Examination and checking of ch8:rges and
accompanying papers ~ _ 66a 57

Service ‘on accused _
66b 57
VIII

Procedure_______________________________ 96c 92

Written confessions 96c(1) 92

Oral confessions 96c (2) 92

Admissions against Interest________________ 96d 92

Official Writings________ _____ _____ _______ 97 93

Admissibility in generaL __________________ 97a 93

Entries obviously not based on personal
knowledge_____________________________ 97b 93

Service records___________________________ 97c
94

Proofofofficialwritings c__________ 97d 95

Method of Proving Writings___________________ 98 95

In general c__________ 98a
95
Original writing must be produced —–98b 95 Writing must be authenticated__ __ ________ _ 98c 96

Exceptions in the case of official records _____ 98d 96

Mechanics of introducing documentary evi­dence_________________________________ 98e 97

Impeachment of Witnesses____ __ __ __ _____ 99 98

In generaL ._ __________________________ 99a
98

Methods of impeaching witnesses c _ _ _ _ _ _ _ 99b 98

Evidence of reputation for truth and veracity
. where witness has been impeached________ 99c 99

Character of accused______________________ 99d 99

Proof of Value of Property_____________________ 100 100

In generaL _________________ _____________ 100a
100

Civilian property ____ ____ __ ________ __ _ 100b 100

Inference of some value from nature of prop­erty___________________________________ 100c 101

Value of government issue property_________ 100d 101

CI-IAPTER 15. FINDINGS.
Closing of Court and Deliberation
_ 101 102 102
Voting Procedure~
_ 102
Number of Votes Required
_ 103 102 103 104
Duties of Members in Voting
_ 104
Types of Findings on Specifications c
_ 105
Findings with exceptions
_ 105b 104 104 105 106 107 107
Findings with exceptions and substitutions
_ 105c
Lesser Included Offenses
_ 106
Findings as to Charges
_ 107
Findings as to Joint Accused
_ 108
Procedure after Voting on Findings
_ 109
CHAPTER 16. SENTENCES AND PUNISHMENTS.
Section 1. Procedure.

Closing of Court and Deliberation
_ 110 109 109 110 110
Duties of Members
_ 111
Method of Voting
_ 112
Number of Votes Required
_ 113
In general
_ 105a 104
Section I.
Procedure-Continued. Paragraph Page
Forni of Sentence____ _________ __ __ _ 114
110
GeneraL ________________________________ 114a
110

Sentence must be single-___ _________ ___ 114b 110

Sentences for Joint Accused~___________________ 115 110

ment _
116 Announcement of Sentences; Clemency; Adjourn­111

II.
Punishments~generallimitations.
Considerations in Determining Punishment _ 117 111

Sentence should be adequate and appropriate_ 117a 111

Limitations on the court’s discretion _ 117b 112

~andatory Sentences~
c_ 118 112

Table of ~aximum Punishments _ 119 113

Definition _
119a 113

To whom applicable _
119b 113

Offenses covered by the Table _ 119c 113

Offenses to which the limitation in Table no
longer applies J _ _ __ _ 119d
113

Substituted Punishments_ ___ ___ __ _ 120
114
I I I. Types of punishments.
Confinement at Hard Labor _
121 115
121a 115

Who subject to . _
121b 115

Length of confinement-~ _
121c 116

Imposing forfeiture with confinemenL _ 121d 116

Form of sentence _
121e 116

Hard Labor Without Confinement _ 122 117
Definition _

122a 117

Who subject to ~ _
122b 117

Execution of the sentence c _
122c 117

Restriction to Limits _
123 117

Defin~ion ——–
123a 117

Who subject to _
123b 117

Length of restriction _
123c 117

Forfeiture of Pay _ 124 118

Definition _
124a 118

Who subject to forfeiture _ 124b 118

Amount of forfeiture _
124c 118

Pay subject to forfeitures . _ 124d 118

Class F deductions _
124e 119

Effect of reduction of noncommissioned officer
or private first class _ 124f
119

Forms of sentences _
124g 119Fines _
125 120

Definition _
125a 120

Who subject to _
125b 120

Detention of Pay _
126 121

Definition ~ _
126a 121

Who subject to _
126b 121

Amount of detention _
126c 121
Publishing Result of TriaL _ 143 137

PreparaMon _
144 137
Headquarters     _
144a 137
144b 138

~UInbering——————————-144c 138

Orders appointing the court
_ 144d 138 138 138
I>escriptionof accused c
~     _ 144e
Charges and Specifications
_ 144f
Pleas
Findings and Sentence
_
144h 138 138
Previous convictions
_ 144i
Authentication
_
1441 139 139
Joint and common trials
_ 144n
Distribution
_ 145 139
144g 138

I>ate of sentence or acquittaL
Action _ 144j 139
_
144k 139

Acquittal
_ 144m 139
Rehearing
_ 1440 139
Court-Martial Orders Remitting or Suspending
Sentences, or Vacating Suspensions _ 146 140

LIST OF APPENDICES     _
141

APPENDICES _
143
INDEX     _
278
CHAPTER 10. TRIAL JUDGE ADVOCATE-Continued. Paraoraph Paoe
Preparation of the Case
Analyzing the case
Interviewing witnesses
Arrangement of evidence
Preparation of questions and
ment
c_
Attendance of Witnesses; Stipulations; Depositions_
In general _ Stipulations _ Depositions _ Attendance of military witnesses _ Attendance of civilian witnesses _ Attendance of witnesses for the defense _ Arranging for TriaL _ Notifying members, witnesses, and the accused
Preparation of courtroom, etc Duties during TriaL Duties after TriaL Report of result of triaL Preparation of the record Preparation of vouchers Weekly Reports
CHAPTER 11. DEFENSE COUNSEL.
Right of Accused to CounseL Duties of Defense Counsel in GeneraL Duties bef,ore TriaL In general
_ _ _ _ _ _ _
_ _ _ _
Receipt and examination of charges and accom­
panying papers Interview with accused Advising accused as to pleas Preparation of the case Duties during TriaL In general Calling accused as witness Duties after TriaL c c _” Clemency__
~~_~
Examination of record ~
CHAPTER 12. MEMBERS OF GENERAL AND SPECIAL MARTIAL.
In General President Definitioll ” Assembling the court Excusing members Duties during trial in generaL Rulings on interlocutory questions Concluding incidents of triaL Authentication of record
~ _ “_ _ _ opening state­
_ _ _ _ _ _ _
_
_ _
COURTS­
_
_ –__
67 58
67a 58
67b 59
67c 59

67d 61
68 61
68a 61
68b 61
68c 62
68d 63
68e 63
68f 63
69 64
69a 64
69b 64
70 64
7l 65
7la 65
7lb 65
7lc 65
72 65

73 66
74 66
75 67
75a 67

75b 67
75c 67
75d 68
75e 68
76 68
76a 68
76b 69
77 69
77a 69
77b 70

78 71
79 71
79a 71

_
79b 71
_

79c 71
_ 79d 72
_ 7ge 72
_ 79f 73
_

79g 73

IX

CHAPTER 12. MEMBERS OF GENERAL AND SPECIAL COURTS· MARTIAL-Continued. Paragraph Page
Law ~ember________________________________ 80 73
Definition_______________________________ 80a 73
Presence at triaL__ ____ __ __ __ _____ __ _ 80b 73
Rulings on interlocutory questions __________ 80c 73
Other duties during triaL__________________ 80d 74
Duties in closed session____________________ 80e 74
Junior ~embeL______________________________ 81 74

CHAPTER 13. TRIAL PROCEDURE.
General
Preliminary ~atters challenges In general Disclosing grounds of challenge Presenting challenges Disposition of challenges for cause
Voting Peremptory challenges Action after challenges Arraignment and Continuances Pleas GeneraL Special pleas Pleas to the merits Opening Statements Introduction of Evidence and Witnesses In general

Examination
Calling and qualifying’of witnesses
Order of testimony
Direct examination

Cross-examination——–c—­Examination by the court.
Objections_–c—–c———­~otion for Findings of Not GuiltycArguments __
cc c
Joint and Common Trials Joint trials Common trials
CHAPTER 14. EVIDENCE.
Nature and Purpose of Rules of Evidence Direct and Circumstantial Evidence Hearsay Rule • Definition Exceptions to the hearsay rule .. Admissions and Confessions-In GeneraL Proof of Confessions and Admissions A confession must be voluntary
_
_
_
_
_ _
_
_
_
_
_
_ _
_
There must be other evidence of the offense__
_
82 76
_

83 76

_
84 77

_
84a 77
_ 84b 78
_ 84c 78
_ 84d 78

_
84e 79
_

84f 79
_

84g 80

_ _
~
_ _ _
of _ _ _ _ _
85 80
86 80
86a 80
86b 80
86c 81
87 82

88 82
88a 82
88b 83
88c 83
88d 83
88e 83
88f 84
88g 84
89 84
90 85
91 85
91a 85
91b 86

92 87
93 87
94 88
94a 88
94b 89

9.5 89
96 90
96a 90
§6b 91

CHAPTER 14. EVIDENCE-Continued.
Proof of Confessions and Admissions-Con. Paragraph Pag,
c
CHAPTER 16. SENTENCES AND PUNISHMENTS-Continued.
Defin~ion
_
CHAPTER 17. COURT-MARTIAL RECORDS. Paragraph Page
In General ” _
127
General Court-Martial Cases _ 128 Number of copies of record _ 128a Reporters _
128b
Form and contents _
128c Examination by defense counseL _ 128d Authentication _
128e Service on accused _
128f
correction _
128g
Forwarding _
128h
Special Court-Martial Cases _ 129 Number of copies of record _ 129a Reporters _
129b Form and contents _
129c Examination, authentication, and correction__ 129d Forwarding to reviewing authority _ 12ge
Summary Court-Martial Cases _ 130
CHAPTER 18. ACTION ON PROCEEDINGS BY REVIEWING AUTHOR ITY.
General  _  131
Examination of Record  ~  _  132
Approval of the Sentence Disapproval  _ _  133 134
Approval and Disapproval of Findings RehearIng  _ _  135 136
Correction of the Record and Revision  _  137
Certificate of correction  _  13-7a
Revision proceedings  _  137b
Remission and MitigationGeneral  _ _  138 138a
Reduction in quantity  _  138b
Reduction in quality  _  138c
Limitations  _  138d
Execution and Suspension  _  139
Form of Reviewing Authority’s Action  _  140
Completion,Record  Arrangement,  and  Disposition  of _  141
In summary court-martial cases  _  141a
In special court-martial cases  _  141b
General court-martial records  _  ‘141c
Subsequent Action on Sentences  _  142
What action may be taken  _  142a
Who may take action  _  142b
How accomplished  _  142c
Restoration of garrison prisoners to duty  _  142d

122 122 122 122 122 123 123 123 123 124 124 124 124 124 124 124 124
126 126 127 127 127 128 129 129 130 131 131 131 132 132 132 133
133’ 133 134 135 135 135 135 136 136
CHAPTER 19. COURT-MARTIAL ORDERS.     Paragraph Page
I>ate     _
_
CHAPTER I
GENERAL

1. MILITARY JUSTICE AND THE ARTICLES OF WAR. a. In general. Mili­tary Justice is the system for enforcing discipline and administering criminal law in the Army. If an Army is to be anything but an uncon­trolled mob, discipline is required and must be enforced. In civilian life, every citizen is subject to many laws ranging from local ordinances to fed­
. eral statutes.     If he breaks those laws, he may be tried in the criminal courts and punished. So also in the Army, there are rules governing the conduct of military personnel and providing a method by which persons who break those rules may be punished. They are contained in the Articles of War, statutes enacted by Congress in the exercise of the power which the Constitution gives it “to make rules for the government of the land and naval forces.”
b.
History of the Articles of War. The present Articles of War were enacted by Congress in 1920, and amended in a few particulars since that date. In all armies, it has been necessary to have similar rules and some system of enforcing those rules through military authorities. In this country, regulations for the government of the Army have been con­tinuously in force since the time of the Revolution, existing even before the colonists declared their independence and long before the Constitu­tion itself was adopted. On June 4, 1775, the Second Continental Con­gress appointed a committee, of which George Washington was chair­man, to “prepare rules and regulations for the government of the Army,” and the first Articles were adopted on June 30, 1775, 3 days before George Washington took command of the Co:U:tinental Army. Those Articles were patterned largely on the British Articles then in force, which in turn were derived from earlier Articles traceable back through the seventeenth century to the middle ages. The system of military justice is, therefore, the product of centuries of experience in many countries. While retaining the substance which history has proved sound, nevertheless our Articles of War are not mere relics of the past. Congress has periodically reconsidered and revised them in the light of new experi­ence. The original Articles adopted in 1775 were completely revised in 1776,17136,1806,1874,1916, and finally in i920, and there have been many minor changes at other times.

c.
Nature of the Articles of War. The present Articles of War conSIst of a series of articles numbered from 1 to 121, each being referred to in this manual as AW. Forty-three of these (AW 54 through 96) describe various crimes and offenses and how they shall be punished. These are known as the “punitive articles.” Most of the remaining articles deal with the procedure by which the punitive articles are to be enforce-d. They provide for a system of courts-martial and establish the procedure of such courts in general. There are also miscellaneous provisions not deal­ing with military justice but with other aspects of military service, such as courts of inquiry, separation from the service, rank and precedence, and deceased persons. .

2. CRIMES AND OFFENSES. The crimes and offenses made punishable by the punitive articles (AW 54 through 96) may be divided into three generalgroups. First, the crimes with which ‘everyone is familiar, such as murder and rape (AW92), arson, burglary, larceny, and sodomy (AW 93) and frauds against the United States (AW 94). Second, the off’enses· which are strictly military in nature, arising out of military duties and having no counterpart in civilian life,of whichdesertion (AW 58), willful disobedience of lawful orders of superior officers and noncommissioned officers (AW 64, 65), misbehavior before theenemy (AW 75) and sleeping on post (AW 86) are examples. Third, there are two articles (AW 95 and 96) which do not specify particular acts of misconduct, but cover a variety of transgressions in broad and generalterms. AW 95, which ap­plies only to commissioned officers and to cadets at the United Stl1-tes Mili­tary Academy, makes punishable any “conduct unbecoming an officer and a gentleinan”-i. e., any acts which are morallyunfltting and unworthy of a man ofhonpr. Examples of offenses under this Article are making false offiCial reports, breaches of trust, fraudulently passing bad checks,’ and drunkenness of a gross and disgraceful nature.. AW 96 applies to all persons subject to militar;r law. It makes p:unishable (1) diso~ders. and neglects which are directly prejudicial to good order and the main­tenance of military discipline; (2) condu’ct tending to bring discredit on the military service; and (3) the commission of crimes or offenses not capital denounced in federa~ laws other than the Articles of War. ,The purpose of this general article is to cover offenses not expressly made punishable in the more specific Articles and thus to prevent the possibility of a failure of justice. In practice, perhaps, a greater number of charges are based upon this Article than upon any other. .A detailed discussion of the punitive articles would be out of place in this manual which is in~ tended to cover only the procedure of military justice. Such a discussion, together with the facts which must be proved to establish the various offenses, will be found in chapter XXVI, MOM. In every case before attempting to decide whether’a particular offense has been committed, the pertinent paragraph in that chapter dealing with the offense in question
should first be carefully studied.
3. AGENCIES THROUGH WHICH CRIMES AND OFFENSES PUNISHED. a. In general. Having defined the various offenses and authorized punish­ment for them (AW 54 through 96), Congress provided the means whereby that punishment could be imposed. It established the system of courts-martial to try offenders, and conferred upon commanding officers a disciplinary power to impose limited punishment ,for minor offenses without trial. The exercise of such disciplinary power by com­manding officers is considered fully in chapter 3, infra.
b.
Nature of courts-martial. A court-martial is a court composed of one or more commissioned officers (the number depending upon, the class of court), the function of which is to decide whether a person subject to military law has committed a violation of the Articles of War a:i1d, if it finds, him guilty, to adjudge punishment for the offense. It is an instrumentality through which military authorities enforce discipline and punish offenders. Unlike the criminal courts of a state or the United States, .it is not a permanent judicial body. It comes into existence only when ordered by competent military authority, its members are selected by the officer who appoints it; and its sentences are carried out only when the authority who appointed it, or in some cases like or higher authority, so orders. It is, however, a court of law and justice, determin­ing each case only after hearing. witnesses and receiving evidence. Similarly it is bound by certain rules of evidence and the fundamental principles of criminal’law, and is empowereM to adjudge only such sentences as the Articles of War permit.

c.
Classes of courts-martial. There are three classes of courts-martial:

(1) The highest court, known as a general court-martial, consisting of at least five officers as members (one of whom is designated aslaw member), together with a trial judge advocate (the prosecuting attorney), an assistant trial judge advocate, a defense counsel, and an assistant defense counsel. It has power to try any person subject to military law for violation of any Article of War. It may impose any authorized punish­ment from a mere reprimand to dishonorable discharge, dismissal, life imprisonment, or even death itself. (2) An intermediate court known as a special court-martial, consisting of at least three officers as members, together with a trial judge advocate and defense counsel. It may try any person subject to military law from a warrant officer down to a private. It is more limited as to tlie offenses it can try and the punish­ment it can impose than a general court. (3) The lowest court, known as a summary court-martial, consisting of but one officer who performs the functions of court, trial judge advocate and defense counsel. It is narrowly limited as to the persons it can try and as to the punishments it can impose. Only relatively minor offenses are referred to it. The jurisdiction of general, special, and summary courts-martial with respect to persons, offenses and punishments is discussed in chapter 8, infra.
632260°–45—-2
4. MANUAL FOR COURTS-MARTIAL. Congress itS’elf in the Articles of War defined the crimes and offenses which are punishable and the general system for imposing punishment. No statute, however, can provide for all the numerous details encountl~red in the operation of any judicial or administrative system. The laws establishing the procedure of civil courts, for example, are often supplemented by detailed rules of court. In providing for the court-martial system, Congress accordinglyauthor­ized the President to prescribe the detailed procedure to be followed before military· tribumiJs and the manner of proof and rules of evidence (AW 38), and also to establish maximum limits of punishment for most offenses (AW 45). The President issued these regulations in the Manual for Courts-Martial, U. S. Army, 1928. The Manual for Courts-Martial covers the operation of the entire court-martial system, from the initial steps to be taken before trial through the completion of the case. It deals fully with the various crimes and offenses, the evidence which can be used to prove them and the sentences which can be imposed. It is the bible of military justice. . Being an order of the President issued by direction of Congress, it has all the force of law. From time to time since 1928 changes were made in the Manual for Courts-Martial by execu­tive order of the President. These changes are included in the present edition of the Manual for Courts-Martial corrected to April 20, 1943. All references to the Manual for Courts-Martial herein are to this edition. It will be cited as MCM~
CHAPTER 2
PREVENTIVE AND CORRECTIVE MEASURES

5.
IN GENERAL. Some individuals are by nature rebellious or are habitual offenders who cannot be kept from wrongdoing. Punishment may be the only possible method of dealing with them. Such cases, however, are in the minority. Punishment is a last resort and should be used only if other measures have proved ineffective. In many cases, where the offender is not an incorrigible wrongdoer, proper preventive measures would have kept him out of trouble. The foremost preventive is, of course, good leadership, with all that the term implies. The-better the leadership, the better the morale and discipline in an organization and the fewer the occasions requiring use of punitive measures. For good leadership there is no effective substitute.

6.
DISCIPLINARY INSTRUCTION. a. In general. The importance of ade­quately instructing men in the meaning of their military status, in their duties and responsibilities toward one another, their superiors· and the Government, in the advantages to be gained from being good soldiers and in the disadvantages of a bad record, cannot be too greatly stresselJ. Many men coming into the Army are unfamiliar with the concepts and necessity of military discipline. Unless they know what is expected of them, they cannot be expected to do their job. It is for this reason that Army Regulations provide:

“* ** Officers will impress upon the young enlisted men lessons of patriotism and loyalty, will instill or develop in them the concept of democracy as a form of government ideally suited to the American way of life, and will teach and impress upon them the necessity for obedience and military discipline in the service. These lessons will be repeated again and again. The difference between the status of an enlisted man and that of a civilian will be carefully explained. The Articles of War will not only be read to the enlisted men but will be explained and their purpose laid before the young enlisted man in such a way as to make him under­stand that in becoming an enlisted man he has subjected himself to a new control and has assumed obligations of service that did not rest upon him as a civilian.” (See par. 3, AR 600-10, 8 July 44.)
.It must be remembered that in the Army many officers are inexperienced in matters pertaining to military justice. All officers should fully acquaint themselves with the provisions of the Articles of War and of Army Regu­lations relating to matters of discipline so they can properly instruct their men and also carry out the disciplinary policies of the Army themselves.
b. Explanation of Articles of War. Congress felt it so important ·to acquaint enlisted men with their military obligations that it required certain of the Articles of War to be read and explained to every soldier at the time of his enlistment and once every 6 months thereafter (AW 110). The articles to be read include all the punitive articles (AW 54 through 96) ,together with certain miscellaneous provisions (AWl, 2, 29, and 104 through 109). In addition to these articles specified in AW 110, AW 28 (defining desertion) is to be similarly read and explained. (See par. 27, TM 12-230.) Moreover, specific explanation or the offenses of wartime desertion (AW 28,58,59) misbehavior of-sentinels (AW 86) and the serious consequences resulting therefrom is an important part of training, and it is the duty of a commanding officer to insure that it is properly done. A perfunctory, hurried reading of the articles by an officer who himself does not clearly understand what they mean and is anxious only to get through with a necessary chore, defeats the purpose of the requirement. Soldiers should understand the law so that they will hot break it. Adequate time and preparation must be devoted to the task if that object is to be attained. As a supplement to (but not a substitute for) this required reading and explanation, use of the following sound training films will prove helpful: TF 11-235, Articles of War; TF 15-992, Administration of Military JustIce and -Courts-Martial; TF 19-2034, AWOL and Desertion. The fact that the· Articles of War have never been read to a soldier does not excuse him if he-commIts.an offense, but, although not servi.ng as a defense, it can be regarded by the court as an extenuating circumstance. (See par. 126a, MCM.) . ­
7. DISCHARGE PROCEEDINGS. An individual who, for mental or physical reasons, cannot be adjusted to military service impairs the efficiency and morale of his organization. He may not only get into trouble himself but may corrupt others. If he has no potential value to the service he should be eliminated before his continued presence causes disciplin~ry problems. Under the provisions of AR 615-368, 20 July’1944 and AR 615-369,20 July 1944, an enlisted man may be administratively discharged from the service if he gives evidence of habits or traits of character which serve to render his retention in the service undesirable, or is disqualified for service, physically or in character, through his own misconduct or if he is inapt, does not possess the required degree of adaptability to military service, or is disqualified because of enuresis. Such administrative dis­charge should not be used in place of punishment for a crime or offense. It should never be regarded as a substitute for appropriate disciplinary. action where such action is called for. However, the elimination in proper
cases of undesirables who have no potential military value may prevent the necessity of disciplinary action later. The policy with respect to admin­istrative discharge of homosexuals is set out in War Department Circular 3, 1944, and of marihuana addicts in Memo W 615-13-43, January 29 (Monthly Digest of War Department Directives, January, 1943, p. 13, AR 615-368, 20 July 1944).
8.
NONCOMMISSIONED OFFICERS. A thoroughly competent group of noncommissioned officers is of. vital importance in de”tl’eloping and main­taining discipline in any organization. (See WD Cir. 70,1944.) Careful initial selection of noncommissioned officer material is required. Equally important is the removal of those who do not attain or live up to the standard expected of them. Proper use should be made of administrative proceedings to transfer or reduce inefficient noncommissioned officers. (See pars. 130 and 15, AR 615:””5, 30 June 1943.) Such administrative reduction is not punishment and should not be used as such.

9.
USE OF NONPUNITIVE CORRECTIONAL MEASURES. Many delinquencies occur which indicate, not that the offender is essentially a wrongdoer, but that he needs further instruction or training. For such delinquencies correction, not punishment, is required. If the offense is trivial, Army Regulations provide that no punishment, either under A.W 104 or by court­martial, be imposed until less drastic measures have been tried without success.. (See par. 2b, AR 600-10, 8 July 1944.) A commanding officer is expected and authorized to use appropriate correctional measures to remedy deficiencies in discipline (par. 105, MCM). He may, for instance, warn, criticize, or rebuke the offender or require him to undergo further training. A recruit, for example, who is late for formation, appears in improper uniform or has unclean equipment may be censured, required to clean his equipment, or to take special training. Such action is in the nature of instruction, not punishment..

CHAPTER 3
DISCIPLINARY”‘PUNISHMENT UNDER ARTICLE OF WAR 104

1O. FUNCTION AND USE OF ARTICLE OF WAR 104. Many minor in­fractions of the rules may occur from time to time in any command which require some punishment but which are not sufficiently serious to warrant trial by court martial. To provide a prompt and efficient method of disposing of such offenses, Congress in AW 104 authorized command~ ing officers themselves to impose limited forms of disciplinary punishment directly upon persons of their command without the intervention of a court-martial. Such disciplinary punishment is commonly· known as “company,” “battery,” or “squadron” punishment. The policy as to use of this disciplinary power is clear:
“A commanding officer should resort to his power under A. W. 104 in every case where punishment is deemed necessary and where that article applies, unless it is clear that punishment under that article would not meet the ends of justice and discipline. Superior com­manders should restrain any tendency of a subordinate commander to resort unnecessarily to court-martial jurisdiction for the punish­ment of offenders” (par. 105, MCM).
A commanding officer must not disregard the provisions of AW 104. He must decide in each case whether they are applicable, and if so, whether use of them will adequately serve the ends of justice and discipline. AW 104 does not give commanding officers authority to impose any punishment they see fit in any manner they choose. The forms of author­ized punishment are limited and the procedure for imposing them clearly prescribed. It is necessary to consider, therefore, what offenses can be dealt with under this Article, who may exercise the power, the persons subject to it, and the nature of the punishment that can be imposed,
11. OFFENSES PUNISHABLE. .Only “minor” offenses may be disposed of by use of a commanding officer’s disciplinary powers..Ifa serious offense is to be punished, charges must be preferred and tried by court-martial. Whether an offense is minor or serious is often: a question of judgment which cannot be settled by rule of thumb. Everyone easily recognizes some offenses as being very serious. The Manual refers to three such classes which are never minor (par. 105, MCM): (1) those for which the Articles of War provide a mandatory punishment, such as conduct
unbecoming an officer and a gentleman (AW 95) or an officer’s being found drunk on duty in time of war (AW 85) for which dismissal from the service is required punishment; (2) those for which the death penalty is authorized, such as wartime desertion (AW 58) or sleeping on post in time of war (AW 86); and (3) those for which confinement in a penitentiary is authorized, of which felonies such as arson, burglary or assault with intent to do bodily harm with a dangerous weapon (AW (3) are examples. Whether an offense not falling within one of the above classes is “minor” depends upon its nature, the time and place of its commission, and the person committing· it. “Generally speaking, the term includes derelictions not involving moral turpitude or any greater degree of criminality or seriousness than is involved in the average offense tried by summary court-martial” (par. 100, MCM). In other words, the nature of the offense and the customary punishment for it must be taken into consideration. Offenses such as larceny, an attempt
to commit sodomy, or fraudulently passing a bad check involve moral turpitude and so are not properly to be treated as minor. Escape from confinement, willful disobedience of noncommissioned officers, threatening. or assaulting a sentinel are offenses which, while not involving moral turpitude, are more serious than the average offense tried by summary court. These should not be regarded as minor. On the other hand, unaggravated absence without leave for a short period or drunkenness in station are offenses usually tried by summary court and properly may be punished under AW 104. Of course, an offense which on its face seems minor may be considered a serious one in the light of the circum­stances of the particular case and the person committing it. Drunken­ness on the part of a soldier who constantly overindulges and who has not changed his ways despite repeated attempts at correction and the use Of disciplinary punishment, may cease to be a minor dereliction. The question is one on which the commanding officer must use his best judg­ment taking into account the nature of the offense, its effect upon the organization as a whole, the manner in which such offenses are cus­tomarily punished in the Army, the circumstances of the particular case, and the record of the offender. Unless his discretion is abused, his decision will be final and conclusive.
12. WHO MAY PUNISH. a. The commanding officer of a detachment or a company has power. to impose disciplinary punishment upon all persons of his command. Higher authority (for example, a regimental, post, division, or army commander) also possesses such power. In the case of enlisted men, the offender’s unit commander usually takes dis­ciplinary action. If higher authority believes that disciplinary action under AW 104 is appropriate in such cases, he will normally refer the matter to the unit commander for such action rather than impose punish­ment himself. In the case of officers, the unit commander, although having the power to impose punishment himself, will usually refer the case to, higher authority such as the regimental or post commander. If for­feiture of pay is believed an appropriate punishment in the case of a com­missioned officer who may be so punished (par. 14a, infra), the matter must be referred to the commanding general, since only a commanding officer of the rank of brigadier general or higher has authority to forfeit an officer’s pay under this Article.
b. The disciplinary power ofa commanding officer cannot be delegated to a subordinate (par. 105, MOM). A company commander cannot, therefore, authorize his first sergeant to dispose of offenses under AW 104. He must handle the matter himself. Of course, an officer who is tempo­rarily in command of an organization has full authority to impose dis­ciplinary punishments, since that is one of the command powers to which he has succeeded.
13. PERSONS PUNISHABLE. Any person under the command of the com­manding officer is subject to disciplinary punishment. This includes not only enlisted men but also warrant officers, flight officers, and commissioned officers. There is often more occasion for utilizing AW 104 in the case of officers than in the case of enlisted men. A commissioned officercan be tried only by general court-martial. Unless his misconduct is such as to warrant or require dismissal from the service, disciplinary punishment is usually sufficient and preferable to trial.
14. WHAT PUNISHMENT MAY BE IMPOSED. a. Authorized punishments.
The types of disciplinary punishments which may be imposed are set out in AW 104 and in paragraph 106, MOM. These include admonition
(i. e., a warning or reproof), reprimand, withholding of privileges for not.exceeding 1 week, extra fatigue for not ~xceeding 1 week, restriction to limits for not exceeding 1 week, and hard labor without confinement for not exceeding 1 week. The term “extra fatigue” includes kitchen police. Hard labor may not be imposed on any person above the .rank of private first class and no punishment which would tend to degrade the rank of the person punished is permitted (par. 106, MOM). In the light of these limitations, the punishments which are applicable tonon­commissioned officers and officers are somewhat restricted. In their case, admonition and reprimand, restriction to limits, and withholding of privi­leges may be utilized. An additional punishment available in time of war in the case of commissioned officers below the rank of major-i. e., only captains and lieutenants-is forfeiture of half of 1 month’s pay. The pay subject to forfeiture is base pay, which includes the increase for for” eign service plus longevity pay. Flying pay is not included. (See WD Oir. 420, 1942.) Only oom;missioned officers are subject to such forfeiture.
Warrant officers or flight officers are not commissioned officers, nor are aviation cadets. (See WD Cir. 420, 1942.) ‘l;’heir pay cannot be forfeited under AW 104. .
b.
Time limit and apportionment. The Article limits withholdings of privileges, extra fatigue, restriction and hard labor without confinement to a period not exceeding 1 week. A week means 7 conseautive calendar days. Restriction to the limits for two or more weekends or kitchen police for 7 Sundays, for example, are illegal forms of punishment. Furthermore, any combination of the punishments referred to above cannot exceed a total of 1 week. Thus, a soldier may not be restricted to the limits for 1 week and in addition be required to perform extra fatigue or hard labor. If it is desired to impose a combination of two or more punishments for a single offense, they must be apportioned so that the total will not exceed 1 week. Thus, 4 days’ restriction plus 3 days’ hard labor is authorized since the combined punishment falls within the 1 week limitation. This rule as to apportionment does not, however, prevent adding also a repri­mand or admonition (or, in the case of a captain or lieutenant, forfeiture of pay), even if other authorized punishment in the full amount of 1 week is imposed.

C.
Prohibited punishments. Confinement under guard and forfeiture of pay (except the forfeiture of pay of captains and lieutenants) are ex­pressly prohibited (AW 104; par. 106 MCM). Detention of pay (par. 106 MCM) or any forced contributions or deductions are likewise illegal. Reduction of noncommissioned officers or privates first class is not author­ized as punishment under AW 104, but may be accomplished administra­tively in accordance with paragraphs 130′ and 15, AR 615-5, 30 June 1943. Punishments not sanctioned·by the customs of the service, such as carrying a loaded knapsack (par. 102 MCM) or “double-timing” may not be imposed. Strictly military duties, such as guard duty, drills, practice hikes, and marches, are not to be degraded by use as punishments (par. 102MCM) ,anditisillegaltoimposethemunderAW 104.

15. PROCEDURE FOR IMPOSING PUNISHMENT. a. On enlisted men. The procedure to be followed in exercising disciplinary powers under AW 104 is provided for in paragraphs 107 and 108, MCM.
(1) The first step taken by the commanding officer is to satisfy himself . that the person to be punished has committed the offense in question and that it is a minor offense which can be disposed of under AW 104. No particular form of investigation is required, but the commanding officer should fully acquaint himself with the facts before he takes action. To do this he will usually interview informally persons having knowledge of the offense. It is desirable to give the accused an opportunity to ex­plain his side of the case, and he may be permitted to be present when other witnesses are interviewed if this seems desirable. It must be re-· membered that no pel’son can be required to admit his guilt Or to make “any statement which will incriminate him (AW 24). IIi talking with the accused, therefore, the commanding officer must be careful not tD indicate that he has to make any statement. On the contrary, he should explain to the accused that he is perfectly free to remain silent if he chooses but that if he does say anything, it may be considereq. against him.
(2)
Having satisfied himself that an offense was committed and that disciplinary action under AW 104 is appropriate, the commanding officer will call in the accused, notify him briefly and clearly of the nature of the offense, and inform him that he proposes to impose punishment und81~ AW 104 unless trial by court-martial is demanded. The accused must have an opportunity to demand trial by court-martial before punishment is imposed. Failure to afford him this opportunity nullifies’ the order of punishment and renders it illegal. He should, therefore, be given a reasonable time in which tomake up his mind whether to demand trial. He is not entitled to be informed as to the punishment he will receive if he selects disciplinary punishment in place of” trial. If the accused demands trial, disciplinary action under AW 104 cannot be taken. In such case, if trial is advisable, charges should be promptly preferred and the fact that a demand for trial was made should be noted on a memo­randum attached to the charges (par. 27, MOM) or opposite the specifica­tion on the charge sheet itself (par. 33, MOM). A demand for trial does not require the preferring of charges (par. 109, MOM), but if any punishment is to be·imposed, it must be by way of trial.

(3)
Ifno demand for trial is made, the commanding officer determines the appropriate punishment for the offense and informs the accused of the punishment. At thll same time the accused must be notified of his right to appeal to the “next superior authority” if he’ believes the punishment unjust or out of proportion to the offense.: Such superior authority has the power to modify or set aside the punishment if justice requires, but he may not increase it or impo-se a different kind of punish~ ment (par. 108, MOM). Failure to notify him of his rights renders the punishment illegal. An appeal must be in writing, signed, and include a statement of reasons for regarding the punishment as unjust or ex­cessive (par. 108, MOM). If the accused expresses a desire to appeal, the commanding officer should assist him in preparing the appeal, have him sign it and forward it (through channels) to next superior authority. Having imposed punishment, the commanding officer is charged with the responsibility of having it executed. Punishment should be strictly enforced. Failure in this respect may well have a worse effect on discipline than imposing no punishment at all. The fact that the accused has appealed does not prevent his being required to undergo the punish­ment in the meantime, but the officer imposing the punishment may suspend it until action by higher authority is taken.

b.
In the case of officers. If the commanding officer decides to impose punishment under AW 104 upon an officer of his command, notification of the offense and of his intention to impose punishment therefor must be by written communication to the officer through proper channels. The accused will be directed to acknowledge receipt by indorsement through channels and to include in the indorsement any demand for trial. Notification of the punishment imposed (and of alny reprimand or admonition included therein) will be by indorsement on the original communication and the accused will be directed to acknowledge receipt by similar indorsement and to include the date of receipt and any appeal (par. 107, MOM). A form for imposition of company punish­mentupon an officer is attached. (See app. 5.) Suchdisciplinary power is an attribute of command and may not be delegated to any subordinate. For this reason the commanding officer authorized to impose punishment under AW .104 must discharge the duty personally and cannot authorize any other officer to impose the punishment.

16. RECORDS OF DISCIPLINARY PUNISHMENT. In every case in which punishment is imposed under AW 104, the immediate commanding officer of the person punished must make a record of such punishment (par. 109, MOM) noting the offense with date and place of commission, the punishment which was imposed, the authority who imposed it, the date the accused received notice of the imposition of punishment, the decision of higher authority (in case there was an appeal), any mitigation or remission of punishment and any additional information desired. No form for this record is prescribed. It is commonly kept in a punishment book. A suggested form for such a book is set out in appendix 6. No entry of such punishment will be made in the service record (par. 47, TM 12-230) nor will any transcript of the record be furnished or for­warded in the event of enlisted men’s transfer.· In the case of officers, a copy of the communication imposing the punishment with its indorse­ments is usually placed in the officer’s 201 file. ­
17~ EFFECT OF DISCIPLINARY PUNISHMENT. a. In general. The fact that punishment under AW 104 has been imposed upon a soldier or officer
‘may be taken into account by his commanding officer in connection with other matters affecting him in the future. It is a factor in considering his fitness for promotion. The fact that the offender has been punished under AW 104in the past may be an important consideration in deciding whether trial by court-martial should be had for a subsequent offense. The authority acting upon a sentence may well take into account such prior punishment in determining whether the sentence should be remitted or mitigated.
b. As a bar to trial. No person under military law may without his consent be tried twice for the same offense (AW 40). Punishment under AW 104 is not technically a “trial” within the meaning of this provision.
However, the same fundamental principle of fairness which precludes “double jeopardy” is the basis for the rule set forth in the Manual for Courts-Martial that punishment under AW 104 will bar a .subsequent trial for the same offense (par. 690, MCM). Thus, a soldier who has been properly punished under AW 104 for failure to appear at drill cannot later be tried by coort-martial for the same act. As has been stated above, only “minor” offenses can properly be punished under AW 104. There is no power to dispose of a “serious” offense under that article. If, therefore, disciplinary punishment was in fact imposed for a serious offense, such punishment would not prevent trial by court-martial for that offense. Thus, if a soldier were punished under AW 104 for sleeping on post in violation ofAW 86 (a capital offense, which cannot be con­sidered minor), he could nevertheless be tried by court-martial for that offense, since his commanding officer had no power at all to dispose of so serious a transgression by such limited punishment. The offenses which are minor and properly punishable under AW 104 are described in para­graph 11, SUpTa. Although the imposition of disciplinary punishment for a minor offense will bar a later trial by court-martial for the same offense, it will not bar trial for another crime or offense growing out of the act which was punished (AW 104; par. 690, MCM). For example, ifa soldier werepunished underAW 104 forrecklessdriving, thatpunishmentwould not preclude trying him later for manslaughter if his reckless driving had caused a death (par. 690, MCM) ; or if a soldier while drunk struck a noncommissioned officer, punishment under AW 104 for drunkenness
would not mean that he could not be tried for the assault. If he were so tried, however, he would be entitled to show at the trial the punishment he had already received so that the court could consider that fact in determining its sentence (par. 7ge, MCM).
c. As a previous conviction. As noted above, disciplinary action under AW 104 is not a trial, and an accused who has been so punished has not been “convicted” of any otrense. Records of disciplinary punishment, therefore, are not previous convictions and may not be introduced in evidence by the trial judge advocate nor considered by the court against the accused under the provisions of paragraph 790, MCM.
CHAPTER 4
ARREST AND CONFINEMENT
18. ARREST OR CONFINEMENT BEFORE TRIAL. a. In general. The law with respect to arrest and confinement pending trial is set out in AW 69, paragraphs IS through 23, MCM, and AR 600-355, 17 July 1942. An outline of the procedural·steps to be taken on arrest or confinement is contained in section XVI, TM 12-255.
b. Necessity and purpose of restraint. Ifan offense has been committed for which trial by court-martial is required, the question of imposing some form of restraint on the accused pending trial must be considered. The purpose of such restraint is to insure the presence of the accused at the trial and to prevent him from committing other offenses in the mean­time. A W 69 provides that when “charged with crime or with a serious offense” the accused “shall be placed in confinement or arrest as circum­stances may require” but “shall not ordinarily be placed in confinement” when charged with a minor offense. It is not mandatory that the aocused be restrained at all pending trial (par. 19, MCM). The necessity for any restraint must be determined in the light of the offense charged and the character of the offender. Ifsome restraint is deemed necessary, only the minimum required under the circumstances should be imposed (par. 19, MCM) .
. c. Types of restraint. (1) A. person in arrest is restrained within cer­tain limits, not by physical force, but by his moral and legal obligation to’ obey the order or arrest (par. 139a, MCM). When placed in arrest he is required to remain within his barracks, quarters, or tent unless larger bounds, such as the company area, are specified (AW 69).
(2)
By confinement the accused is physically restrained (par. 139a, MCM) either by being imprisoned in a guardhouse or Qeing put under the control of a guard.

d.
Degree of restraint to be imposed. No greater degree of restraint should be imposed than is required by the circumstances of the particular case. Unless physical restraint is necessary, an accused should not be placed in confinement pending trial. Confinement results in loss of man­power. Not only is the person confined unavailable for duty during his confinement, but the more soldiers there ltre in the guardhouse, the greater the number of guards who must be taken from other duties to control

them. For minor offenses restraint in any form may be unnecessary.
For example, there is usually no need to restrain a soldier who voluntarily
returns after a few days’ absence without leave. The fact that he has
returned on his own accord is a good indication of his intention to stay
with his organization. His availability for trial a few days later can
safBly be assumed. Arrest or restriction would in any event be futile if
he should decide to run off again. On the ‘other hand, a soldier who breaks
restriction and remains absent without leave u~til apprehended, probably
requires confinement since his past conduct indicates that only physical
restraint will hold him with his organization. Even a person who COm~
mits a serious military offense, such as a sentinel who sleeps on post, is
notnecessarily to be confined unless there is some basis for believing that
otherwise he will flee before trial. The question to be decided in each
case is: what restraint, if any, is necessary to insure the presence of the
accused at the trial and to prevent his doing harm to persons or property
in the meantime. .
19. WHO MAY ARREST AND CONFINE. .a.Enlistedmen. (1) Any com­missioned officer has the power to order an enlisted man into arrest or confinement (par. 20, MOM). A warrant officer does not have the au­thority of a commissioned officer to arrest or confine enlisted men, except when he is assigned alid serving as commiande1′ of a station or unit.
(2)
The commanding officer of any company or detachment may dele­gate to his noncommissioned officers the power to arrest or confine enlisted men belonging to his own company or detachment,. or enlisted men of other organizations temporarily in the company’s jurisdiction, if such restraint is necessary (par. 20, MOM). Thus, for example, t4e first ser~ geant of a company, or any other noncommissioned officer, may be author­ized by the company com:mander to arrest or confine any enlisted man requiring such restraint who commits offenses in the company area.

b.
Officers and warrant officers. A commissioned officer or warrant officer may’ be placed in arrest or confinement only by order of a “com­manding officer” (par. 20, MOM). The term “commanding officer” means the officer commanding a complete or separate’organization or command, such as a post or regiment, or any lower unit which is “detached.” In other words, a “commanding officer” is an officer who, under AW 10, has power to appoint a summary court-martial. (See par. 52a, inf1’a.)· For example, a captain commanding a company would have no power to place in arrest a lieutenant in the company if the company was serving with and as part of a regiment. If, however, the company were “detached,” that is; acting alone’ and not subject to the immediate disciplinary control of a superior of the same branch of the service (par. 5b, MOM), such power would exist. Of course, any authority superior to a “commanding officer” has similar power to arrest or confine. Thus, a post commander may arrest, and so may the commanding general of the service command in

which the post is located; a regimental commander may arrest, and so may his superiors, e. g., the division, corps, and Army commanders. A commanding officer may not delegate to others his power to arrest and confine officers. (par. 20, MOM). The order placing a commissioned officer or warrant officer in arrest or confinement must be the order of the commanding officer himself. That does not mean that he personally must communicate his order to the person arrested. Like any order of a com­mander, it may be issued through other officers or be communicated to the person arrested either in writing or orally (par. 20, MOM).
20. PROCEDURE FOR ARRESTING OR CONFINING. a. Preliminary inquiry into offense. No person shauld be placed in arrest or confinement unless the authority so ordering either has personal knowledge of the offense or has made inquiry into it (par. 19, MOM). The purpose of this require­ment is to prevent a person being deprived of his liberty on mere suspi­cion. A full and exhaustive investigation is, of course, not required. But such investigation should be sufficient to furnish reasonable grounds for believing that an offense has been committed by the person to be restrained.
b.
Procedural steps to arrest. An arrest is imposed’by notifying the person to be arrested that he is under arrest and informing him of the limits of his arrest. The order of arrest may be oral or in writing. No particular formality is required. It is desirable to explain to him the meaning of arrest and the penalty which ma.y be imposed if he breaks his arrest.

c.
Procedural steps to place person in confinement. A person to be confined is placed under guard and taken to the guardhouse or other place of confinement. The authority ordering confinement will deliver to the commander of the guard or prison officer a written statement Of the name, grade, and organization of the prisoner and the Articles of War which he has violated. (See par. 6a, AR 600-355, 1’7 July 1942.) Unless such a written statement is delivered with the prisoner, the .com­mander of the guard may refuse to receive the prisoner (AW 71).

d.
Statements and reports required. When a. person is placed in arrest or confinement, reports must be made qf that fact so that proper author­ities willbe sufficiently informed to take proper action.

(1). The immediate commanding officer of the person restrained (i. e., his oompany or unit commander) must at once be notified (par. 6c and d, AR 600-355, 17 July 1942), so that he may take disciplinary action, if necessary, and make proper entries in the morning report. If the arrest or confinement was ordered by a person other than an officer, that person must at once report the fact to his own unit commander who will without delay notify the unit commander of the person restrained. Thus, a non­commissioned officer who has placed a soldier from some other organiza­tion in arrest or confinement would at once inform his own company com­
mander, who would without delay notify that soldier’s unit commander.
If arrest or confinement was ordered by an offioer, he will himself notify
directly the unit commander of the person restrained. Thus, a lieutenant
who placed a soldier in confinement would himself report such confinement
to the soldier’s unit commander.

(2) If an offioer is placed in arrest or confinement without, at the same
time, charges being preferred against him, a written report must be made
to…,the officer having general court-martial jurisdiction. (See par. 6b,

A.R 600–355, 17 July 1942.) Thus, a regimental commander who placed
one of his officers in arrest without preferring charges would be required
to make a written report to the commanding general of the division; a
post commander would make such report to the commanding general of
the service command.

(3) If a person is placed in oonfinement, the commander of the guard
(i. e., the officer of the day or other officer in direct control of the guard­house) within 24 hours after such confinement, or as soon as he is relieved from his guard, must report to the commanding officer the name of the prisoner, the offense charged against him, and the name of the officer who ordered the confinement (AW 72; par. Ha, AR 600-375, 17 May 1943). Thus, if a company commander caused an accused to be confined in the post guardhouse, the prisoner officer (or the officer of the day) would be obliged to make the report to the post commander within 24 hours after confinement. The post commander must then see that proper steps are takentohave theprisonerpromptlytriedorreleased. (SeeAW 70.)
21. STATUS OF PERSON IN ARREST OR CONFINEMENT. a. Status of arrest. A person in arrest is restricted to his barracks, quarters, or tent or such larger limits as may have been specified in the order of arrest (AW 69). A change of status from duty to arrest having occurred, an entry to that effect will be made in the morning report. (See par. 20, AR 345-400, 3 January 1945.) He cannot, if he is to remain in that status, be required to perform his full military duty, since placing him on duty terminates his arrest. This, however, does not prevent his being required to do ordinary cleaning or policing up about his quarters. He is furthermore subject to the restrictions provided in paragraph 7, AR 600-355, 17 July 1942, such as inability to bear arms or to exercise com-­mandof any kind. Ifhe breaks his arrest by going beyond the prescribed limits, he is subject to tri~tl (AW 69) and, if he is a commissioned officer, may suffer the penalty of dismissal for such offense.
b. Status of confinement prior to trial. A person who is confined pend­ing trial is a “garrison prisoner” and subject to the provisions of AR 600-375, 17 May 1943, with respect to treatment, discipline, and employ­ment. If he is a private or private first class, he will perform such hard labor and military duties’as are prescribed.in paragraph 20b, AR 600-375, 17 May 1943. Ifhe is of higher rank, he. will not be required to perform military duties or hard labor while detained, except necessary policing of quarters and employment in the mess appropriate to his grade. (See par. 20(d) (2), AR 60o-a75, 17 May 1943.)
22. DURATION AND TERMINATION OF ARREST AND CONFINEMENT.
When a person is placed in arrest or confinement, immediate steps must be taken either to bring him to trial or to release him (AW 70; pal’. 26, MOM). The law, however, does not prescribe any definite time limit within which he must be released if charges are not preferred. Normally charges can and should be preferred promptly, within at least 48 hours after the accused is restrained. The accused is not automatically released from restraint, however, because of delay in preferring the charges. He must remain in arrest or confinement until released by proper author­ity. The proper authority to release the accused from arrest is normally the offi.cer who imposed the arrest. Thus, a commissioned officer or warrant officer would be released from arrest by order of the commanding officer who had arrested him. An enlisted man will usually be released from arrest by his own unit commander. The proper authority to order release from confinement is the commanding officer to whose command the guardhouse or prison is subject. Thus, a prisoner confined in a post guardhouse would be ordered released by the post commander; a prisoner in a regimental guardhouse by the regimental commander. Once the prisoner is turned over to the guard, he passes beyond the control of the officer who initially ordered him confined-unl-ess such officer is the “commanding officer” described above-and such officer is not a proper authority to order his release (par. 140a, MOM). The release of a prisoner without proper authority is. a punishable offense (AW 73).
632260″–45—-3
CHAPTER 5
PREFERRING CHARGES

23. CHARGES IN GENERAL. a. Definitions. If,because of theseriousnl:ss of the offense, trial by court-martial is required, charges must be pre­ferred-i. e., there must be a formal accusation, just as in state and federal courts a defendant is brought to trial on an indictment. or complaint. The charges consist of two parts, the technical “charge” which is a statement of the Article of War violated, and the “specifica­tion” which is a statement of facts and circumstances constituting that violation (par. 24, MCM). Charges are “preferred” by preparing a charge sheet (WD, AGO Form 115) and submitting it to the officer exercising court-martial jurisdiction. See appendices 2, 3, and 4, for forms of completed charge sheets.
b.
By whom charges preferred. Ordinarily, the immediate command­ing officer of the accused (i. e., the company or unit commander) will himself prefer charges or cause them to be preferred. Charges, however, may be preferred by others. Any person subject to military law­another officer, an enlisted man, or even a prisoner-has the legal right to prefer charges (par. 25, MCM). It is ordinarily preferable, however, for one who claims that an offense has been committed -to inform the immediate commanding officer of the accused of the alleged offense and let him take such action as he deems necessary. Charges cannot be pre­ferred by anyone who is not subject to military law, although such a person may bring to the attention of military authorities a supposed offense. The person who prefers charges is known as the “accuser.” (par. 60, MCM). .

c.
Necessity for inquiry before preferring charges. In the absence of his own personal knowledge, the accuser must make some inquiry into the alleged offenses in order to avoid the preferring of charges on the basis of mere frivolous or malicious accusations, or inaccurate informa­tion. Some investigation frequently is necessary to determine just what offense. The person who prefers charges is known as the “accuser” that a report of an assault and battery was not accurate, and that the offender should be charged instead with being drunk and disorderly. The accuser should be sure that there is evidence of all elements of the offense, and should know from what witnesses 01′ other sources such evidence

can be obtained. This does not mean that in each case he must make an exhaustive investigation or even interview all possible witnesses. The extent of the inquiry will depend upon the seriousness of the offense, the existence of unusual circumstances, the extent of the accuser’s personal knowledge of the facts, or the credibility of the original complaint he receives. In preferring charges the accuser must take an oath that he either has personal knowledge of, or has investigated, the matters stated in the specifications (par. 31, MCM; also Affidavit, WD, AGO Form 115). To avoid swearing falsely, he must at least have made sufficient inquiry into the offense to justify a reasonable belief that the accused committed it.
d.
Promptness in preferring charges. Undue delay in preferring charges not only is an injustice to the accused, but has an adverse effect upon the discipline of the command. Although no definite time limit for preferring charges is set by law or regulation, in the ordinary case they should be preferred within 48 hours after the offense is discovered. Promptness is particularly necessary if the accused is in arrest or con­finement, since AW 70 requires that· “immediate steps” be taken either to try or to release a person who is thus restrained. The accumulation of charges, that is, allowing various unrelated offenses to pass without taking any disciplinary action and then preferring charges for such past offenses if the accused is later guilty of further misconduct, is an improper practice. Ifan offense warrants punishment at all, punishment should be imposed at once. Punishment long after an offense has oc­curred hurts rather than helps the discipline of the command.

e.
Additional charges. After charges originally are preferred, but before the accused is brought to trial, other offenses by the accused may be brought to light. Such offenses may have occurred before the prepara­tion of the charge sheet, but were not known at that time to the accuser, or, as is more frequently the case, they may be committed after the original charges.were preferred, as, for example, a breach of arrest or escape from confinement while the accused was awaiting trial. Charges for such offenses should be tried at the same time as the original charges. They are known as “additional charges.” They should be preferred separately on a charge sheet designated “additional charges,” and for­warded for disposition in conjunction with the original charges. If they are added to the original charge sheet, the affidavit should be amended to show the accuser’s knowledge or investigation of the additional charges and specifications. Since the additional charges also must be sworn to by the accuser, the date of the affidavit should be changed, if nBcessary, so that it will not be prior to the date of the offense alleged in the additional charges.

24. SELECTION OF CHARGE. a. General. The first step in preferring charges is to determine the offense or offenses with which the accused
should be· Dharged. That requires an analysis of’the facts ,and a study of the pertinent paragraphs of the Manualfbr Courts-Martial dealing with the elements of proof of various offenses (ch. XXVI, MCM). In the case of Privat~Lennie O. Bark (app. 2) , for example, Lieutenant Loganby, his company commander, before starting to prepare the charge sheet, first considered what offense Bark committed by deliberately refusing to obey his order to go out to drill. Turning to the Index of the Manual for Courts-Martial under the heading “Disobedience of Orders,” he found that the offense of willful disobedience in violation of AW 64 was dealt with in paragraph 134b. From the discussion in that paragraph he re­alized that to constitute willful disobedience there must be an intentional defiance of authority, not mere heedless failure to obey, or nonperformance of a mere routine duty. Checking the elements of proof, he concluded that in this case the offense was.committed. Accordingly, he decided to charge willful disobedience in violation of AW 64. Had the facts been different and Bark’s disobedience been due to mere neglect, or had the order been a standing order, then he would have decided to charge the offense of failure to obey in violation of AW 96. In the Bark case the selection of the appropriate offense was not difficult. Often there is more doubt as to what offense the accused has committed. For example, wrong­ful taking and use of property must be distinguished from larceny. To be guilty of larceny, the taker must have an intention permanently to deprive the owner of his rights in the property taken. One who takes a vehicle for a short “joy ride” without permission from the owner has not committed larceny if the taking is not accompanied with the intent to permanently deprive the owner thereof. Such cases should· be charged as wrongful taking and using either under AW 96 if a civilian vehicle, or under AW 94 if a Government vehicle, rather than as larceny under AW
93. If, after careful study of the facts and the Manual for Courts-Martial, uncertainty still remains, it is well to consult the staff judge advocate, if possible, before drafting charges. .
b.
Multiplication of charges. When an offender has committed several violations of the Articles of War, either by a single act or by acts connected with one incident, there may be a temptation to “throw the book at him”­that is, to charge him with every violation, serious or petty, of which he is technically guilty. -Such a practice of multiplication of charges is to. be avoided (par. 27, MCM). Numerous charges and specifications increase the difficulty of investigation, trial and action on the record. Moreover, the amount of punishment is not increased by charging several different offenses arising out of a single act, since punishment may be imposed with respect to the act in its most serious aspect only. (See par. BOa, MCM.)

c.
Combining charges of serious and minor offenses. If a serious offense is charged, charges of minor offenses should not generally be added. (See par. 27, MCM.) Thus, to a charge of burglary, there should not be joined a charge of being drunk in quarters; to the charge of sleeping on post.

there should not be added a charge of failure to repair for reveille. The possible additional punishment for the minor offense is inconsequential, and the additional charge is a nuisance at the trial and detracts from the important charge. However, if the minor offense serves to explain the circumstances of the greater offense, it is proper to charge both. For example, if the accused stole $50 from the footlocker of another soldier after having lost heavily in a poker game, the charge of gambling in camp in violation of orders could properly be added to the more serious offense of larceny, since the former explains the motive for the larceny.
d. Joint charges. A joint offense is one committed by two or more persons acting together in pursuance of a common intent. If, for example, soldiers A and B plan to rob a service station, and pursuant to that plan A holds up the proprietor with a gun while B removes money from the till, a joint offense of robbery has been committed. Anyone who aids, abets, or assists another in the commission of an offense is as much a principal as the chief o:tfunder, e. g., the driver of a getaway car as well as those remov­ing the money at the point of a gun, would be guilty of robbery. Joint offenders may be charged either separately or jointly-that is, a single charge may be made against all (par. 27, MOM). The advantage of a joint charge is that all the accused will be tried together at one trial, thus saving time, labor and expense. This must be weighed against possible unfairness to the accused which may. result if their defenses are incon­sistent or if evidence against one would seriously prejudice another. As to some offenses which can be committed only by two or more acting to­gether, such as mutiny, riot, Or conspiracy, the charges should almost always be joint. As to others, such as robbery or assault committed by
two or more, the question is one of the most convenient method·of trial. There are offenses which can never be joint, such as absence without leave, desertion, or drunkenness (par. 27, MOM). Such offenses cannot be jointly charged.
25. DRAFTING CHARGES AND SPECIFICATIONS. a. The charge. The offense or offenses to be charged having been determined, the next step is to draft the charges and specifications. The charge is simply a state­ment of the Article of War which was violated (par. 28, MOM). In deciding what offense to charge, the accuser necessarily will have con­cluded what the proper Article of War is. No matter how many offenses an accused commits, if they are all violations of a single Article·of War, there will be only one charge. For example, AW 93 covers”among other things, the offenses of arson, burglary, perjury, forgery and assault with intent to do bodily harm. If an accused committed each one of those offenses, he would have violated only one Article of. War. Accordingly, in charging him with those five offenses there would be one charge­violation of AW 93-and five specifications, each setting out a separate offense. On the other hand, if the accused committed the offense of
larceny and also deserted the service,-he would have violated two Articles of War, i. e., AW 93 by larceny and AW 58 by deserting. Incharging him, therefore, there would be two charges with one specification under each. Designation of the wrong Article of War in a charge is not fatal, provided that the specification sets out an offense (par. 28, MCM).
b.
Specifications, in general. In drafting the specification, the accuser should see appendix 4, Manual for Courts-Martial, for the appropriate form. There he will find 167 forms for specifications covering almost every offense. The specification for willful disobedience in violation of AW 64, for example, is covered in Form 28. Ifthere is a specification for the offense he wants to charge, as there will be in ninety-nine cases out of one hundred, he should copy that specification exactly. Any attempts to improve on the form or add new flourishes may result in failure to charge any offeI).se. In the rare case where there is no form exactly covering the offense he wants to charge, the form for the offense which seems most like it should be followed as a guide. For example, there is no form for a specification charging involuntary manslaughter'”ji. e., the unintentional killing of a human being through· culpable negligence. To allege that offense,the specification for voluntary manslaughter (Form 88) should be adapted by omitting the words “willfully, feloniously, and.” In some cases there. may be no form which even seems close to the offense to be charged. Then the accuser must make up his own. He should state clearly and concisely just what the accused did. In drawing upa new specification, care must be taken to show that the acts done by the accused were unlawful by stating that he did the acts “unlawfully” or “wrongfully,” otherwise no offense may be stated. For example, an alle­gation that the accused “took and carried away” the property of another person does not set out an offense since he may have had permission to take it or have done sounder orders from a superior. If, however, it is stated that he took it “wrongfully” or “unlawfully,” it is clear that an offense was committed. Forms of specifications for wrongful taking and conversion of property of another are set out in appendix 7. Before drafting the specification, the Instructions, appendix 4, pp. 236-238, Manual for Courts-Martial,should be studied; They contain detailed information as to the method for completing the forms. Other particular matters to be observed in drafting specifications are discussed below.

c.
Abbreviations. Abbreviations should not be used in specifications. Grades, organizations and months should be written out in full. How­ever, the numerical designation of the organization should be set out in figures instead of words-e. g., “341st Field Artillery Battalion” or “IX Armored Corps”-except where the official designation of the organiza­tion is always written out as in the case of an Army, an Air Force, or a Service Command-e. g., “Third Army,” “First Air Force,” “Fourth Service Command.” (See par. 6, AR 220-5, 16 December 1944.)

d.
Serial numbers. The serial nlllmber of the accused should not appear in specifications (par. a, app. 4, MOM).

e.
Description of persons. The accused should be described by name, rank and organization only. If a civilian, appropriate descriptive words showing jurisdiction should be added after his name, such as “a person accompanying the armies of the United States in the field” (par. 0, app. 4, MCM). Other persons mentioned in the specification may be identi­fied by name and rank only, if military personnel, and by name only, if civilians. ‘

f.
Dates. Dates should be alleged as “on or about” a certain date. The hour of the day at which the offense is alleged to have occurred should not usually’ be stated. In charging absence without leave for a brief period during one calendar day, however, the hours of departure and return may be st~ted, if known.

g.
Details. Although a specification must describe the offense charged so that it reasonably refers to that specific offense and no other, it should not allege details unnecessary for that purpose. Since details alleged must be proved, elaborate specifications unduly increase diffi}Culties of proof. It is not ordinarily proper to allege the street address where the offense occurred, or to recite the occupation, residence, or station of persons, or detailed descriptions of articles. For example, a specification alleging that the accused did “at Cheyenne, Wyoming, on or about 15 November 1943, feloniously take, steal. and carry away a Chevrolet automobile, value about $375, the property of George R. Crowe” would be sufficient.

h.
Value. .In order to be the subject of a larceny, the thing stolen must be of some value. The articles alleged to have been stolen and the value of each should be stated. For example, an allegation that the accused stole “clothil1g and equipment of a total value of $ ” is improper; it should be stated as “one shirt, value $ , one pair of shoes, value $ , and one blanket, value $ , of a total value of $ .” Value of articles should be stated as “value $2.08” (when known exactly, e. g., per Government price list), or “value about $5” (the usual form). If money itself is involved (e. g., when money is alleged to have been stolen), it should be described as “about $3.50, lawful money of the United States.”

i.
Several larcenies. When several articles appear to have been stolen at about the same time and place, from either one or several persons, as when a thief enters a barracks at night and steals articles from several foot lockers, the larceny of all of them should be alleged ina single specification (pars. 27, 149g, MCM). If, however; there were several unrelated larcenies committed at different times, each should be set out in a separate specification. ‘

j.
Examples of correct and incorrect drafting. The following example illustrates the errors most commonly made in the drafting of specifications:

Specification: In that Pvt. Arthur N. Beadle, 38432987, Co. C, 118th Inf., Ft. Sam Houston, Tex., did, at Ft. Sam Houston; Tex., on or about March 20th, 1943, take, steal, and carry away one billfold, black leather, value two dollars ($2.00), containing three dollars and fifty cents ($3.-5’0) in currency, andpersonal papers, all the property of Pvt. Lester P. Wake, Co. B, 118th Inf., Ft. Sam Houston, Tex.
Under the rules set out above, the foregoing specification should read as follows:
Specification: In that Private Arthur N. Beadle, Company C, 118th Infantry, did, at Fort Sam Houston, Texas, on or about 20 March 1943, feloniously· take, steal and carry away one billfold, value about $2, and ~bout $3.50, lawful money of the United States, of a total value of $5.50, the property of Private Lester P. Wake.
k. Numbering charges and specifications. When there is but a single charge-that is, when a violation of only one Article of War is alleged­the charge is not numbered. When there is more than one, however, the charges are to be numbered with Roman numerals-i. e., Charge I, Charge II, etc. Similarly, if there isbut one specification under a par­ticular charge, it should not be numbered. But if more than one speci­fication is alleged under one Charge, they are designated by Arabic numerals-i. e., Specification r, Specification 2 (app. 4b, MCM). Ad­ditional charges (par. 23c, supra) are numbered in the same manner as the original charge; a single added charge is designated simply “Ad­ditional Charge,” but if more than one, they are numbered Additional Charge I, Additional Charge II, etc. Specifications under additional charges are designated in the same way as ordinary specifications. The term “Additional” is not used in connection with the specifications.
26. PREPARATION OF CHARGE SHEET. a. General. Having drafted the charges and specifications,-the accuser must then prepare the charge sheet in triplicate. The first page consists largely of personal data re­garding the accused and a list of witnesses and of records or other articles to be used as evidence. The instructions on the charge sheet (WD AGO Form 115) should be carefully followed. Attention should be given to the matters noted below.
b. Name, etc., of accused. The instructions on page 1 as to the name of the accused state “Give last name, first name, and middle initial in that order followed by serial number, grade, company, regiment, arm or service, or by other appropriate description of accused.” It will be noted that the method of stating the name is the reverse of that used in the specification. It will be noted also that the serial number must be stated, whereas it is never set out in the specification. Great care must be taken to set out this data correctly since an error may cause the wrong p~rson to be charged. If the accused is not a member of a mili­tary organization or of any arm or service, such as a civilian accompany­ing the Army, the “appropriate description” following his name would be words indicating what he was and that he was subject to military law.
c.
Age of accused. It is preferable to state the age of the accused in years and months as of the date of preferring charges (e. g., 25 8/12). The word “present” should be inserted over the age.

d.
Pay of accused. Pay of the accused will be base pay only. “Base pay” includes the increase for longevity and for foreign service. (See par. 124d, infra.) The amount of any compulsory deduction from an enlisted man’s pay under the Servicemen’s Dependents Allowance. Act should be entered in the space “Allotments to Dependents” and indicated as “Class F.” (See par. 39, AR 35-5540, 5 January 1944.) This space is also used for entering the amount of any voluntary allotment for the benefit of dependents. Deductions for National Service Life Insurance are to be entered in the space designated “Government Insurance De­duction.” Other allotments should not be entered on the charge sheet.

e.Service of accused. Prior service should be shown under this head­ing with the inclusive dates of such service, organizations from which discharged, and the total length of such service in years, months, and days. If the accused had no prior service, the statement “no prior service” should be made. After such entry, current service should be shown. In the case of enlisted men, this should include a statement as
to the place and date of enlistment or induction and of the term of enlist­ment, which now is “for the duration of the war and 6 months.” In the case of officers, this should include a statement of the date of original commission and dates of entry upon present active duty.
f. Data cis to witnesses, etc. In this space should be listed the names and addresses of witnesses under tllrheadings “Against the Accused” and “For the Accused.” If there are no witnesses for the accused, the word “None” should be entered under the latter heading. If the wit­nesses are in military service, their grade, organization, and station should be shown-e. g., “Corporal Arthur T. Bickle, Battery B, 741st Coast Artillery Battalion,Fort Dawes, Maine.” Under the heading “Docu­mentary and Other Evidence” there should be listed any papers, docu­ments,or other articles or things-e. g., a knife, currency, etc.-which may be introduced in evidence. If there is no such evidence, the word “None” should be entered under that heading. The record of previous
.convictions (par. 29, infra) should not bereferred to on the charge sheet.
g. Data as to restraint of the accused.. The type, place and date of any restraint imposed should be stated. If the accused was initially placed in arrest or confinement elsewhere by military or civil authorities, the date and place of such initial restraint should also be shown. If no restramt was imposed, this’fact should be indicated.
—–.-­
27. PREPARING JOINT CHARGES. In preparing joint charges, page 1 of the charge sheet should be filled in as to one accused in the ordinary way. (See par. 26, supra.) The personal data as to the other accused should be filled in on page 1 of another charge sheet-the page cut off immediately above “Data as to witnesses, etc.” It is usually unnecessary to fill out the entire first page asto the other accused since the data as to witnesses and restraint will nearly always be the same for all. Securely fasten the cut page to the top of page 1 of the first charge sheet. Forms for specifications for joint offenses may be found in Appendix 41, p. 237, MOM. In using these forms it·must be noted that an allegation “that Private A and Private B, acting jointly and in pursuance of a common intent, did, in conjunction with Private 0” do a certain act, does not state an offense against Private 0, but does charge a joint offense against 4­andB.
2’8. SIGNING AND SWEARING TO CHARGES. After he has prepared the charge sheet, the accuser will sign the same on the original on page 3 and swear to it before a person authorized to administer oaths. Ordinarily the copies need not be signed. The charges may be sworn to before any of the officers authorized by AW 114 to administer oaths. The notes .in fine print appearing at the end of the affidavit should be strictly followed. It must appear that the accuser either has personal knowledge of, or has investigated, each matter made the subject of charges. The :Inapplicable words should be stricken from the affidavit.. If the accuser has personal knowledge of certain specifications and charges and has investigated others, nothing need be stricken. Oare should be taken to insur~ that the affidavit on the charge sheet shows the date of its execution and the name, rank, branch and capacity (i. e., Adjutant, Summary Oourt, etc.) of the officer administering the oath. Unless it appears that the officer was one who could administer oaths, it may be contended that the charges were not sworn to. If the accuser believes the accused is innocent, but feels that he should be tried for his own protection-that is, in order to have judicial determination of his innocence-he need not swear to the charges. Such a ease would be one in which, for example, a sentinel in the perform­ance of his duty killed an intruder and it was desired to try him for homicide so that the lawfulness of the killing might be established. An accused, however, may not be tried upon unsworn charges if he objects par. 31, MOM).
29. EVIDENCE OF PREVIOUS CONVICTIONS. a. General. When for­warded, the charges should be accompanied by evidence of previous convictions. (par. 34, MOM). This may be considered in deciding what disposition to make of the charges, but is primarily for lIse by the court (if the case is referred for, trial) in determining the amount of the sentence (par. BOa, MOM). The evidence is usually in thll form of an extract copy of the pertinent entries in the accused’s service record (app. 2, par. 216 infra) showing the date and nature of the offense, the sentence imposed, and the fact of approval. Theextract must be authen­ticated by the official custodian of the service record, who ordinarily is the unit personnel officer.
b. Convictions which should be included. The evidence of previous convictions should be in such form that it can be introduced at the trial. Therefore, only convictions which can be considered by the court should be included. Disciplinary punishment under the 104th Article of War is not a conviction, and no reference thereto should be made. The convictions must be..convictions by courts-martial. Such previous convic­tions may be considered by the court only if they meet two conditions:
(1) they must be for offenses which were committed during the accused’s current enlistment (if an enlisted man) or current appointment (if an officer); and (2) they must be for offenses which were committed within 1 year of the offense being charged (if an enlisted man) or within 3 years of the offense being charged (if an officer). Thus, if a soldier is tried on 7 July 1944 for an offense committed on 1 July 1944, only convictions for offenses committed within 1 year before 1 July 1944 would be admis­sible-i. e., offenses committed on or after 1 July 1943. Therefore, a conviction for an offense committed on 29 June 1943 would not be admis­sible and should not be included in the certificate of previous convictions. In computing the 1 year, periods of absence without leave for which the accused was convicted should be excluded (par. 79c, MOM). Thus, in the example given above, if the accused had been convicted of absence
.without leave from 1 September 1943 to 1 October 1943, that period of 30 days would not be counted in computing back 1 year from 1 July 1944. One year from 1 July 1944 (excluding that 30-day period) would be 1 June 1943. Therefore, any offense committed on or after 1 June 1943 would be admissible, and the conviction for the offense committed on 29 June 1943 should be included in the certificate in such case. Periods of absence without leave are excluded only if the accused was convicted of such absence. Disciplinary punishment under AW 104 for such absence is not a conviction. Thus, if, in the example last given, the accused had in fact been absent without leave from 1 September 1943 to 1 October 1943 but had not °been convicted of such absence, the 30-day period would not be excluded. Nor are periods during which the accused was not in a duty status during the one year for other reasons (as, for example, periods in confinement or in a hospital for treatment for vene­real disease) to be excluded. The only periods which may be discounted are periods of unauthorized absences for which the accused was convicted.
c. Where no admissible previous convictions. If the accused has no admissible previous convictions, a certificate that there are no admissible convictions should be forwarded. Although, if no evidence of convic­tions is forwarded with the record, it may properly be assumed that the1’e a1’e n.11. which ..11 .. conside1’ed, it is bette1′ to …. .11 exp1’ess ce1’tificate .. that :fact. The11 the1’e … .. .. question o:fme1’ely:fo1’get­ting to :fo1’wa1’d evidence .. convictions i:f the1’e a1’e ….
… STATEMENT OF EV/DENCEUPON WH/CH CHARGES BASED. Unless the accuse1′ believes that the cha1’ges will .. disposed .. unde1′ .W 104 01′ .. 1’e:fe1’ence to . summa1’Y …., he should p1’epa1’e . summa1’Y .. the evidence …n which the cha1’ges a1’e based. This summa1’Y is i11­tended.to give the commanding o:ffice1′ su:fficient in:fo1’mation about the case so that he … decide how to dispose .. it, … to guide the investi· gating o:ffice1′ i:f the cha1’ges .1′. late1′ ..1′..ll. inve~.tigated. The s.m­ma1’Y … .. in … convenient :fo1’m. (See …. 2, … 180~185 injra.) The signatures .. witnesses to the summa1’ies .. thei1′ 1’espective testimony should .. obtained when p1’acticable and”when .. und.. delay will 1’esult
(..1′. 32, …). ., ..1′ .n. 1’eason, itis desi1’able to make . ..1′. …­plete statement .. the testimony .. … witness (fo1′ example, i:f it … .. di:fficult ..1′ the investigating o:ffice1′ to inte1’view .. late1′, 01′ if the accused will p1’obably not. desi1’e to c1’oss-examine .., 01′ if the1’e is . possibility that he … .. tampe1’ed with …… the investigation), the substance .. his testimony, stated in the first pe1’son, should ..· signed .n. swo1’n to .. … Each s..h swo1’n statement should .. ente1’ed .. . sepa1’ate sheet .. plain pape1′ ..1′ possible attachment to the investi­gating offilce1″S 1’epo1’t.
.1. L….R OF .R.NS./…L. Oha1’ges not disposed .. u.1.1′ the p1’o­visions .. .W 104 should .. :fo1’wa1’ded .. lette1′ .. t1’ansmittal unless the accuse1′ believes that they should .. 1’e:fe1’1’ed to . summa1’Y cou1’t~ ma1’tial. The lette1′ … .. ve1’Y b1’ie:f, … . mimeog1’aphed :fo1’m … .. used. (See …. 2, .. 175 injra.) It should contain aspecific 1’ecom­mendation as to disposition .. the cha1’ges. .. explanation .. … unusual :featu1’es .. the case 01′ . statement as to the cha1’acte1′ .. se1’vice .. tlle ..­cused … .. included. .n. documenta1’Y evidence that … .. used in p1’oo:f .. the o:ffense should .. listed in the …. .. the lette1′ … should n.1’…. .. :forwa1’ded with the cha1’ges. (Pa1′. 32, ….) Anya1’ticles
which … .. int1’oduced in evidence should .. 1’e:fe1’1’ed to with . state­ment as to whe1’e they … .. …… Othe1′ pape1’s submitted with the cha1’ges (such as p1’io1′ co1’1’espondence) should .. listed sepa1’ately as inclosures. If it is believed that t1’ial should .. had .. summa1’Y cou1’t­ma1’tial, cha1’ges … .. submitted without . lette1′ .. t1’ansmittal 01′ … accompanying pape1’s othe1′ than the ce1’tificate .. p1’evious convictions. Such :fo1’wa1’ding will .. cons-ide1’ed . 1’ecommendation ..1′ t1’ial ..; summa1’Y cou1’t.
32. SUBM/SSION OF CHARGES .. /MMED/ATE COMMANDER OF ACCUSED. If . pe1’son othe1′ than the immediate commande1′ .. the accused p1’e:fe1’s cha1’ges, .. o1’dina1’ily should submit them to such commande1′ :fo1′ action.
(Par. 30, MOM.) That officer is the one primarily concerned with the discipline of the accused and is in the best position to know of any per­sonal elements that should be considered in determining what dispo­sition to make of the charges. The accuser, moreover, may not have available the personal data regarding the accused which mllst be shown in the charge sheet, and the immediate commanding officer can supply the necessary information. Upon receipt of the charges, the immediate commander will take action in accordance with paragraph 33, MCM. If any err the offenses alleged may properly be punished by action under AW 104, he should so dispose of them, and line out and initial the speci­fications and charges thus disposed of. Charges not so disposed of should be carefully examined to insure that they are complete and correct in form and properly signed and sworn to by a person subject to military law, and that the accuser’s summary of evidence is sufficient; Any miss­ing personal data on the first page of the charge sheet should be inserted and any errors corrected. No corrections or changes may be made in the charges or specifications themselves.
33. FORWARDING ·CHARGES. -Charges which the immediate command­ing officer of the accused has preferred himself, and charges submitted to him by others which he has not disposed of under AW 104, will be forwarded by him directly to the officer who has authority to appoint summary court-martial for the command (par. 30a, MCM), e. g., the regimental or post commander. (See par. 52, infra, for a discussion of the commanders having such authority.) The charges will be for­war!led by letter of transmittal (except where trial by summary court­martial is recommended), inclosing the summary of evidence, certificate of previous convictions, and any other pertinent memoranda discussed in the preceding paragraphs.
CHAPTER 6
ACTION UPON CHARGES

..
34. IN GENERAL. The charges and allied papers are forwarded to the officer exercising summary court-martial jurisdiction over the organiza­tion-for .example, the regimental or post commander-who will be referred to in this chapter as the “commanding officer.” It is his task to see than the charges are properly disposed of. The various types of action he can take are discussed in the following paragraphs.
35. DISMISSAL OF CHARGES AND ACTION UNDER AW.104. a. Dismissal.
Upon examination of the charges, he may decide that all or some of them do not warrant further action because they are trivial, do not constitute any offense or because there are sound reasons for not punishing the ac­cused for such offenses. If so, he may dismiss all or part of the charges. If he wishes to dismiss all of the charges, he normally will return the charge sheet and allied papers to the accuser by indorsement on the letter of transmittal (if any) or by separate communication, stating that no action appears warranted. Ifhe wishes to dismiss only some of the speci­fications or charges, he will draw lines through such specifications or charges and initial them.
b.
Action under AWl 04. He has the same obligation and authority as the immediate commanding officer of the accused to make use of dis­ciplinary punishment under AW 104 if such punishment is appropriate. If, therefore, any of the offenses charged are “minor” offenses which can be adequately punished under that article, he will, unless trial is demanded, line out the specification or charge alleging that offense and have appro­priate disciplinary punishment imposed. Although he may himself im­pose the punishment, normally the matter should be referred back to the immediate commanding officer of the accused for action. The procedure to be followed in imposing disciplinary punishment under AW 104 is dis­cussed in chapter 3, supra. Of course, if the accused demands trial, dis­ciplinary punishment cannot be imposed. In such case the charge must be either dismissed or tried.

c.
Renumbering of charges and specifications. Where some charges and specifications are dismissed or disposed of under AW 104, the remain­ing charges and specifications may require renumbering. Thus, if there

were two charges, with one specification under Charge I and three speci­fications under Charge II; and the commanding officer struck out Charge I and its specification and also Specification 1 of Charge II, all that would be left would be a single charge with two specifications under it. There­fore, the numeral II should be stricken out after the Charge and the specifications should be renumbered 1 and 2. In such case it would be necessary to change the numerical designations of the charge and specifi­cations appearing in the affidavit on the charge sheet to correspond to this renumbering.
36. MAKING CHANGES AND CORRECTIONS IN CHARGES. If the com­manding officer decides that trial by court-martial is necessary on all or some of the charges, he should, before referring them to trial, have the charges carefully examined to deteq;nine that they are properly signed and sworn to, free from defects of form or substance, and that they prop­erly set out an offense under the Article of War alleged. Ifany errors or omissions are discovered in the charge sheet or allied papers, relating to formal matters, such as data as to service, previous convictions, etc., cor­rections should be made or the missing data supplied. Ifthe charges and specifications themselves contain obvious errors, corrections may be made, or the charges and specifications may be redrafted without sending the charges hack to the accuser, provided that the correction or redraft does not involve any substantial change or include matters not already fairly included. Where corrections or changes are made, they must be initialed by the officer making them. If a specification sets out all the elements of the offense, but is carelessly drawn, its wording can be changed to
conform to the appropriate form in appendix 4, MCM. Or if, for ex­ample, a specification and charge allege larceny in violation of AW 93, the specification can be redrafted to allege wrongful taking, and the charge changed to allege a violation·of AW 96, since that offense is fairly in­cluded in the original charge. This change can be made by striking out the necessary words and figures and substituting new ones, or by retyping the entire specification and charge. However, the. specification could not be redrafted over the accuser’s signature to allege larceny of different or additional property, or to charge embezzlement rather than larceny. Such redrafting would result in charging new matters to which the accuser has never sworn. If slich a change is necessary, new charges must be prepared and signed and sworn to either by the original accuser or some other authorized person.
37. REFERENCE Td TRIAL BY INFERIOR COURT. a. Policy. Having de­termined that trial by court martial is warranted, the commanding officer must decide to what type of court-martial the charges should be referred. The Manual for Courts-Martial provides that “charges, if tried at all, should be tried by the lowest court that has power to adjudge an appro­priate and adequate punishment” (par. 34, MCM). The first question to be determined then is whether a summary (lourt has jurisdiction to
try the accused and the offense in question, and if so, whether the punish­
ment it has power to impose is adequate and appropriate for the offense.
If the case cannot adequately be disposed of by summary court, then
consideration must be given to referring it to a special court~martial.
In this connection, the jurisdictional limits of summary and special COUl’ts­
martial, discussed, in chapter 8, infra, should be considered. .Trial by
general court-martial should be the exception, not the rule. Charges
against an enlisted man should not be referred to general court-martial
unless the offense is so serious that only a general court-martial has power
to adjudge an adequate sentence or unless the accused should be dishon­
orably separated from the service because he is unsuitable to associate
with other enlisted men.
b. Procedure. If the charges are to be referred to a summary or spe­cial court-martial the 1st indorsement on page 3 of the charge sheet should be completed and signed by the adjutant on each of the three copies. The charge sheets, together with the allied papers, will then be transmitted to the summary court officer or trial judge advocate of the special court-martial as the case may be.
38. FORWARDING CHARGES TO AUTHORITY HAVING GENERAL COURT­MARTIAL JURISDICTION. a. Reference to investigating officer. If the commanding officer decides that trial by general court-martial is required,’ the charges must be formally investigated in compliance with AW 70 before being forwarded to superior authority (par. 300, MOM). A formal investigation under AW 70 is not required before charges are referred to inferior courts-martial for trial (AW 70; par. 30c,. MCM) , although the commanding officer may have any charges investigated before deciding how to dispose. of them. Such action would be proper if he were doubtful as to the nature of the offense, the appropriateness of the charges or the type of inferior court to which they should be referred. However, he should not unduly delay trial by requiring inves­tigations in the usual case of minor offenses. The purpose and procedure of an investigation under AW 10 is discussed in chapter 7, infra.
b. Action after investigation. On the basis of the investigating officer’s report, the commanding officer may conclude that his initial decision to recommend trial by general court-martial was not sound and that it would be better to dismiss the charges, dispose of them under AW 104 or refer them to an inferior court. He would accordingly take such of those actions as was indicated. If, however, he still believes that trial by general court-martial is warranted, he will forward the charges, allied papers and the investigating officer’s report to the authority having general court-martial jurisdiction over the command. Unless he has been otherwise directed, all three copies of the charge sheet and other papers will be forwarded. Usually he will forward the charges by indorsement on the letter of transmittal. He must include in the indorse­ment, or other communication, his recommendation as to trial. The indorsement or letter should be personally signed by the commanding officer and not by his adjutant. (See app. 2, p. 179 infra.)
c. Forwarding charges where general court-martial not recommended.
The commanding. officer may believe that trial by an inferior court is adequate, but. he may have no power to refer the charges to such a court. For example, he is without authority to refer a capital case to a special court-martial (par. 58b, infra), or to refer charges against a noncommissioned officer to a summary court over his objection. (See par. 59a, infra.) In such cases trial by the inferior court in question can be authorized only by the authority having general court-martial jurisdiction. .The commanding officer, therefore, would· forward the charges to the authority having general court-martial jurisdiction, recom­mending trial by special or summary court, as the case maybe.
d. Action by officer exercising general court-marital jurisdiction. AW 70 and paragraph 350, MCM, require the authority having general court-martial jurisdiction to consider the advice of his staff judge ad­vocate, based on all the information relating to the case which is reason­ably available, before he orders trial by general court-martial. This requirement for examination of the charges by a trained military lawyer safeguards the substantial rights of the accused and protects him against trial on unfounded or relatively minor offenses by a general court-martial and insures adequate preparation and investigation of each case. The staff judge advocate rechecks the charges and accompanying papers to ascertain that all necessary data appear on their face, that they have been properly investigated and that there is sufficient evidence to war­rant trial. Just as the “commanding officer” may correct errors and redraft charges and specifications over the signature of the accuser, provided no substantial change is made and no matter not fairly included in the orlginal charges is added (par. 36, supra), so the staff judge advo­cate may make similar corrections and changes.· If the investigation has beell inadequate or is incomplete, he may recommend that the charges be sent back for further investigation. He must make a written report
to the officer exercising general court-martial jurisdiction as to the kind of trial, if any, which should be had, taking into account the nature of the offenses charged, the circumstances surrounding them, the age, charac­ter, length of service, and former convictions of the accused, and policies as to trial by inferior court. (See app. 2, p.178 infra for an example of such a report.) In addition to refel”ence to a general cQtUrt-martial for trial, he may recommend, and the appointing authority may take, any of the actions which the commanding officer could have taken~. g. dismissal of any charge or specification, disposition under AW 104, or reference to an inferior court.’ Normally if disposition under AW 104 or trial by an inferior court is deemed proper, the charges will be returned to the commanding officer who forwarded them, with directions to take such actiOli. If trial by general court-martial is decided upon, the charges
632260°-45-4′ ~s
will be referred to the trial judge advocate of that court by completion of the first indorsement on the charge sheet.
39.
SUSPECTED INSANITY. If there is reason to believe that the accused is mentally defective or was so at the time the offense was committed, steps should be taken to settle the question before charges are referred to trial. The matter should be referred to a board of one or,more medical officers for its opinion On three questions: (1) whether both at the present time and at the time the offense was committed the accused knew the difference between right and wrong, (2) whether he had the capacity to keep from doing wrong,and (3) whether at the present time he has the mental ability to understand the nature of the proceed­ings against him and to do what is necessary to present his defense. To determine these questions the board should placethe accused under obser­vation, examine him and conduct such further investigation as it thinks necessary. Its report, in as nontechnical language as possible, sltould state its opinion specifically on these questions. On the basis of this report, further action on the charges may be suspended or the charges dismissed, proceedings may be taken to discharge the accused from the service on the ground of mental disability, or the charges may be re­ferred to trial. Both the commanding officer who first received charges and higher authority to whom the charges are forwarded have authority to have the accused examined by a board of medical officers.

40.
SUGGESTED TIME STANDARD FOR DISPOSITION OF CHARGES. There is no prescribed period of time within which charges must be preferred and the various steps in the’trial of a case taken and completed. Nor­mally, however, the following time periods can be observed without any sacrifice of thoroughness or fairness. In most cases it should be possible to prefer charges within 48 hours after an offense is known to have been committed. If such charges are to be tried by a summary court, the case should be tried and completed within 3 days after the charges are preferred. In special court-martial cases, the charges should be referred for trial, the trial had and the record completed within 7 days after the charges are preferred. In general court-martial cases, the charges should be investigated within 48 hours after they’are preferred, should be sent to the officer e~ercising general court-martial jurisdiction within 24 hours after completion of the investigation and should be referred for trial within 48 hours after receipt by the officer exercising general court­martial jurisdiction.’ After being so referred they should promptly be served On the accused, but, except where military necessity demands it, the accused should not be brought to trial on those charges· before a

general court-martialwitnin 5 days after such service unless he consents thereto. There will, of course, be many cases in which for good reasons compliance with this suggested standard will not be possible. However, this standard should be the rule, and departure from it the exception.
CHAPTER 7
INVESTIGATION OF CHARGES

41.
PURPOSE AND SCOPE OF INVESTIGATION UNDER AW 70. The pur­pose of the formal investigation required by AW 70 is to inquire into the truth of the matter set forth in the charges, the form of the charges, and what disposition should be made of the case (par. 35.a, MOM). It is not the investigator’s function to build up a case against the· accused, but to ascertain and impartially weigh all facts in arriving at his final conclusions. He is required to conduct “a thorough and impartial inves­tigation” (AW 70). All available evidence should be exhausted. The investigating officer is not limited to examination of the witnesses and documentary evidence indicated on the charge sheet; he should extend his investigation as far as may be necessary to make it thorough. Failure of investigating officers to perform their duties in a careful and conscientious manner will sometimes cause injustice to be done and will often require return of the charges for further investigation, thus delaying tlJ.e proceedings’.

42.
PRELIMINARY PROCEDURE UPON RECEIPT OF CHARGES. Before starting the investigation proper, the charge shellt and accompanying papers should be examined with particular attention to the witnesses and evidence relied upon by the accuser to substantiate the charges. The investigating officer should familiarize himself with the essential elements of each offense charged so that he will be able to determine whether the evidence received in the investigation supports the offense charged. Paragraphs 129 through 152, MOM, contain a discussion of the more common offenses under the Articles of War, and give in detail the neces­sary elements of proof in each case. Each specification should be com· pared with the corresponding form in appendix 4, MOM. Any minor corrections necessary to put it in proper form may be made andauthen­ticated by initials. Ohanges of substance may not be made.

43.
INVESTIGATION PROPER. a. Since, in the absence of a satisfactory reason, the report of investigation should be completed within 48 hours, immediate steps must be taken to arrange a time and place for the investi­gation at which the accused and all available witnesses will be present.

b.
At the outset, the accused should be advised that an impartial inves­tigation .of the charges is to be conducted. The nature of the charges, the name of the accuser, and the names and substance of the testimony of all witnesses should be made known to him. He should be shown the charge sheet and accompanying papers. He should then be advised that he has the right to cross-examine all witnesses against him if available, to call any available additional witnesses in his own behalf, to introduce any other evidence, and to make any statement bearing on the case subject to the risk of having it used against him. He must be specifically warned that it is not necessary. for him to make any statement. He should be made to understand that the investigating offker is seeking the truth, not playing the role of prosecutor.

c.
After the accused has been fully advised of his rights, all available witnesses should be called and examined in his presence. In examining witnesses the investigating officer should encourage them to talk freely, being alert to discover any evidence not disclosed by the papers. If witnesses are not available, their expected testimony should be read to the accused and he should be asked if he desires to have them questioned further. If he does not, the witnesses need not be called, everiif they become available. Ifthe accused does wish to question them, the investi­gating officer should ascertain whether they will be available within a reasonably short time and, if so, whether the officer referring the charges for investigation will consent to a delay for the purpose of questioning such witnesses. The investigating officer may ascertain the substance of the testimony which the accused expects from any witness, and inform the accused that such testimony will be regarded as having been taken; and if accused then withdraws his request to have the witness questioned, such witness need not be called even if he is available. The decision of the officer having immediate summary court-martial jurisdiCtion over the witness (e. g. the regimental commander) as to the availability of the witness is final (par. 35a, MOM). The accused has no right to counsel, although in exceptional cases the commanding officer of the accused may, in his discretion, permit counsel.

44. PREPARATION OF SUMMARIES OF EXPECTED TESTIMONY. a. Wit­nesses. After each witness has been examined and cross-examined his material testizpony should be reduced to writing and recorded on a separate ~heet of paper headed by the name of the witness, a notation as to whether he was sworn, anq any other appropriate explanatory comment, e. g., “Johns, Walter E., Pvt., 00. B, ll1th Infantry, Fort Meade, Maryland (Sworn),” “Werner, Irwin A., grocer, 112-13th St., N. W., Washington,
D. C. (by telephone).” The summary should be in the first person and should be reasonably brief without sacrificing important details. Matter which is obviously hearsay or which could serve no useful purpose at the trial should be excluded. Although witnesses need not sign or swear to their statements, it is advisable to secure signed and sworn statements if practicable. If the witness is sworn, the following jurat: “Subscribed
and sworn to before. me this day of , 19 ,” should be added after his signature. The jurat will be signed by the investigating officer, who has authority to administer oaths for all pur­poses of the investigation. (See AW 114, and app. 2, pp. 180-185 infra, for examples of summaries of expected testimony.)
b. Statement of accused. Any statement made by the accused will like­wise be reduced to writing, will be read over to him, and he will be given the opportunity to sign it, if he so desires. But he will not be required or induced to sign it and will be advised that it is not necessary for him to do so.
45. SUFFICIENCY OF EVIDENCE TO SUSTAIN CHARGES. a. General.
After the investigating officer has heard all the witnesses and examined all documents and other relevant matters, he will check the” essential elements of the offense with the evidence to determine whether the charges can be sustained. It often will be impossible to find direet evidence of every element of the offense charged, but the element may be established by reasonable inference from other facts (par. 112b, MOM). Thus, for example, all the essential elements of a larceny may be proved by showing
(1)
the disappearance of the article from the possession of its owner with­out his consent (from which.it is inferred that it was taken and carried away by trespass), and (2) the unexplained possession by the accused of this same article shortly thereafter (from which it is inferred that it was the accused who committed the trespass and carried the article away) and

(3)
the fact that the accused had made no report of having the property of another in his possession, well knowing the incriminating nature of such possession, plus, perhaps, the fact that he used the property as his­own,or asserted ownership of it through pawning it or otherwise (from which it is inferred that he had the intention to deprive the owner per­manently of his property). Wherever the intention of the accused is an essential element, as for example, in desertion, larceny, burglary, murder, it almost always must be inferred from the circumstances.

b.
Lesser incruCled and related offenses. If the evidence is not suffi­cient to establish the offense charged, it may tend to establish a lesser included offerise-i. e., an offense which must be proved in establishing the principal offense, but which lacks some of the additional elements of the principal offense. For example, absence without leave must be proved to establish desertion, but does not contain the element of intent to remain away permanently or to avoid hazardous duty or shirk important service required for desertion; wrongful taking without the consent of the owner must be shown to establish larceny, but lacks the element of intent to deprive the owner permanently of his property required for larceny. (See app. 8 infra for a list of some of the more common lesser inc!uded offenses.) .

39.
If the evidence tends to establish only the lesser included offense, the investigating officer may recommend that the lesser offense be substituted on the charge sheet for the greater offense originally charged, or, in case of doubt, that the accused be tried on the original charge since the court can always find him guilty of the lesser included offense. (See par. 106, infra.) The evid,ence may, however, show a different offense, not included in the offense cha’rged. For example, if under a charge of larceny the evidence showed that the accused did not wrongfully take the property but that it was entrusted to him, the offense of embezzlement should have been charged. In such case, the investigating officer may recommend that the original charge be withdrawn and the accused tried on a substituted charge. The investiga:ting officer should draft the substituted charge on a separate charge sheet, have it sworn to (or swear to it himself if to the best of his knowledge and belief the facts it contains are true) and forward it with h.is report of investigation.
46. RECOMMENDATION AS TO DISPOSITION OF CASE. Ifthe investigat­ing officer decides that the evidence will not support a finding of guilty of the original charge, or of some lesser included or other offense, he will so report, recommending dismissal of the charges. If he is in doubt as to whether the charges can be sustained, he can properly recommend trial, particularly ifthe offense is of a serious nature, so that the doubtful issue of fact can be determined by a court. If he is convinced that the charges can be sustained, he will then recommend the type of court to which they should be referred. In this connection he will be guided by the policy with respect to trial by inferior courts discussed in chapter 6,
supra.
47. REPORT OF INVESTIGATING OFFICER. a. Contents. If he deter­mines that the charges should be dismissed, disposed of under AW 104, or tried by inferior court, the investigating officer may make an informal report to that effect to the commanding officer, either orally or in writing. If the commanding officer then decides not to forward the charges, the investigating officer may be required to make ony a very abbreviated formal report or none at all (par. 35a, MOM). He must make a com­plete formal report, however, when required to do so, or when he himself recommends trial by general court-martial. The printed form of Pretrial Investigating Officer’s Report (WD AGO Form 120, seeapp. 2, p. 177 mfra) may properly be used, but its use is not required, and other forms may be provided locally for this purpose. The report will include a rec­ommendation as to the disposition ofthe case, a statement of the investigat­ing officer’s opinion as to whether the accused is or was mentally defective, deranged, or abnormal; and a statement of the substance of the testimony taken on· both sides (par. 35a, MOM). The report, together with a summary of the expected testimony of witnesses, and any statement by the accused, will be prepared in triplicate.
b.
Documents and other evidence. A list of all documents and other evidence (such as a pistol, knife, or shoes) and any other matters which have been considered, with such comment as may be necessary to identify them, should be made in the space provided on the form. Where practicable to do so, documents should be attached to the report, fastened to legal size paper to permit ready incorporation into the file. Official records and bulky documents or evidence will not be attached, but a statement will be made as to where they may be found. Articles to be used as evidence, which have been placed for safekeeping in the posses­sion of a responsible person (for example, a billfold, believed to have been stolen, which has been found in the accused’s locker and delivered to the company commander) should be left in his custody, if practicable, until they are produced at the trial. The reason is, of course, that in order to identify the article when introducing it in evidence, it may be necessary to present the testimony of each person who has had it in his possession since it was found in the accused’s locker, and this procedure becomes unduly complicated if the article has passed through several hands.

c.
Explanatory remarks. A statement of any explanatory or extenuat­ing circumstances should be made in the report whether they are offered by the accused in his own behalf or are developed by the independent inquiry of the investigating officer. These circumstances, which perhaps have no direct bearing on the question of accused’s guilt, may be very important in determining the type of court to try the case. Comments as to appearance and apparent credibility of the accused or other wit­nesses may be included. In short, all matters which were given weight by the investigating officer in making his recommendation should appear in his report.

48. INVESTIGATION OF THE CASE OF PRIVATE BARK. a. Examples of the forms and procedure used in investigating charg~ appear in the case of Private Lennie O. Bark (app. 2 infra). By first indorsement on the letter of transmittal (app. 2, p. 176 infra) the regimental commander referred the charges to Lieutenant Neeland, investigating officer. Lieutenant Nee­land first studied the charges and the accuser’s summary of evidence, and noted that the offenses alleged were willful disobedience of a superior offi­cer, escape from confinement, and desertion; and that the specifications fol­lowed the appropriate forms in appendix 4, MCM. He then exa.mined the paragraphs in the Manual for Courts-Martial dealing with the ele­ments of proof of these three offenses (pars. 134b, 139b, and 130a, respectively, MCM). It appeared that the witnesses whose testimony was outlined in the accuser’s summary of evidence should be able to testify to all of these necessary elements. Accordingly, he promptly arranged for the witnesses to come to his office at regimental headquar­ters and for the accused to be brought there under guard. This was a fairly simple matter, since all were members of the same command. If
some witnesses had been in other organizations or were civilians, the in­vestigating officer might have had to go to them; or, if it had not been practicable for the accused to be brought from his place of confinement, it might have been necessary to interview him and the witnesses at the guardhouse.
b. After advising Private Bark in the manner outlined in paragraph 43b, 8upra, Lieutenant Neeland interviewed each witness separately in Bark’s presence, with the exception of Lieutenant John Smith, giving Bark an opportunity to cross-examine each and to make a statement himself. Lieutenant Smith was interviewed by telephone after the ac­cused had been shown the summary of his expected testimony and stated that he did not wish to cross-examine him. After the hearing he pre­pared, in triplicate, a summary of each witness’ testimony which was signed and sworn to by each, except Lieutenant Smith. (See app. 2, pp. 180-184 infra.) The accused elected to remain silent rather than make a statement. Concluding that the statements of the witnesses were sufficient to support the charge, Lieutenant Neeland prepared his report in triplicate (app.2, pp. 177-178 infra) recommending trial by general court-martial, attached the statements as ,exhibits, and returned all three copies, with the charges and accompanying papers, to the regimental commander.
CHAPTER 8
APPOINTMENT AND JURISDICTION OF COURTS-MARTIAL

49.
APPOINTMENT IN GENERAL. There are three classes of courts-mar­tial: general, special, and summary (AW 3). Certain commanding officers are authorized by the Articles of War to appoint one or more of these classes of courts. The officer who has this power is called the “appointing authority.” .. The power is not dependent upon rank, but upon command. An officer who is not so authorized under the Articles of War cannot appoint courts, whether he be a general officer or a second lieutenant. Officers authorized to appoint are enumerated in AW 8, 9, and 10, dealing, respectively, with general, special, and summary courts-martial. .

50.
WHO MAY APPOINT GENERAL COURTS-MARTIAL. A general court­martial can be appointed only by relatively few persons. AW 8 author­izes the President of the United States, the Superintendent of the Military Academy, the commanding officer of a territorial department or territorial division (e. g., the Department of Hawaii, the Department of Alaska) and the commanding officers of certain large tactical units-i. e., an army, a corps, a division, and a separate brigade-to appoint a general court­martial. It will be seen that this list does not include the commanding officers of many other organizations or installations, such as service com­mands, air forces, defense commands, ports of embarkation, etc. How­ever, AW 8 permits the President to empower the commanding officer of any district or any force or body of troops to appoint a general court. Through General Orders, or other directives, of the War Department, the President has given that power to commanding officers of many such large organizations and installations. A commanding officer who has power to appoint a general court-martial is known as an “authority exercising general court-martial jurisdiction.”

51.
WHO MAY APPOINT SPECIAL COURTS-MARTIAL. a. Post, station, and regimental commanders. Any authority who can appoint a general court-martial can also appoint a special court-martial. In addition, the commanding officers enumerated in AW 9 have power to appoint such courts-i. e., “the commanding officer of a district, garrison, fort, camp, or other place where troops are on duty”-in short, any post or station

commander-and the commanding officer of a “brigade, regiment, de­tached battalion, or other detached command.” Post and regimental commanders are typical examples of officers who have power to appoint a special court-martial. .
b.
Other commanding officers. Many types of organizations, it will be noted, are not expressly referred to in AW 9. No reference, for example, is made to squadrons, groups, and wings in the Air Force. Such units, however, correspond to battalions, regiments, and brigades, respectively, and so have the same power to appoint inferior courts. (See par. 20, AR 95-10,27 July 1942.) Nor is there any express reference to the many varying special types of units which are not part of any division or regi­mental organization, such as antiaircraft battalions, supply, repair arid replacement depots, service schools, etc. Most of these, however, are cov­ered by the term “detached battalion or other detached command.” If a unit is not subject to the immediate disciplinary control of a superior of, the same branch of the service and its commanding officer is primarily responsible for the administration of discipline over the enlisted men in it, it is “detached.” For example, independent units such as a quarter­master port battalion or a service school are “detached.” So is an engineer battalion in an infantry division, since there is no intermediate command of the same branch of the service between it and division headquarters, and its commanding officer is directly responsible for discipline in the command. On the other hand, a battalion in an infantry regiment, while serving as a part of the regiment, is not “detached” since it is merely a tactical unit subject for disciplinary purposes to the control of the regi­mental commander, a superior of the same branch of the service.

c.
Reservation by superior authority of power to appoint. A command­ing officer who has power under AW 9 to appoint special courts-martial is known as an “authority exercising special court-martial jurisdiction.” His power to appoint such courts cannot, however, be exercised if “a competent superior deems it ‘desirable’ to reserve that power to himself and so notifies the subordinate” (par. 5b, MOM). By “superior” is meant higher authority in the same chain of command. For example, the com­manding general of a division might reserVe to himself the power to appoint special courts martial for all or any units in the division, and if he so notified the commander of each regiment or detached command in the division, they could not appoint special courts.

52. WHO MAY APPOINT SUMMARY COURTS-MARTIAL. a. General.
Summary courts may be appointed by any officer who has power to appoint a general or special court-martial. Post and regimental commanders are typical examples of an authority exercising summary court-martial juris­diction. The commanding officer of any “detached company, or other detachment” is also specifically authorized to appoint summary courts (AW 10). The term “detached” or “detachment” has the same meaning as in AW 9-i. e., a body of troops separated from others and made an independent unit for disciplinary purposes. (See par. 51b, supra.) So that a small detachment may have the means of enforcing discipline through summary courts, AW 10 provides that “when but one officer is present with a command he shall be the summary court officer.” In such case, he automatically assumes his duties as summary court officer without any order of appointment (par. 50, MCM). Where more than one officer is present with a command, however,· a subordinate officer must be appointed summary court-martial (par. 50, MCM).
b. Reservation by’ superior authority of power to appoint. As in the case of special courts-martial, a “competent superior” may reserve to him­self the power to appoint summary courts. (See par. 51c, supra.)
53. COURTS APPOINTED BY “ACCUSER” OR “PROSECUTOR.” a. General and special courts-martial. An accused may not be tried by a general or special court-martial appointed by the “accuser,” that is, the. one who originates, adopts, or becomes responsible for the charge, or the “prosecu­tor,” that is, the one who proposes or undertakes to have the charges tried, in the case. (See AW 8, 9) An officer who has himself signed and sworn to the charges is always an accuser (par. 60, MCM) and any officer who, because of his personal feeling or interest in charges preferred by another, adopts them as his own or undertakes to have them tried is an accuser or prosecutor (pars. 5, 60, MCM). The mere forwarding of charges with a formal recommendation as to their disposition does not make the forward­ing officer either an accuser or prosecutor. Every officer exercising court­martial jurisdiction must make a recommendation as to the disposition of charges submitted to him before they are referred for trial. Mere fulfillment of this official duty does not disqualify him from acting as an appointing authority. If the officer who appointed a general or special court is the accuser or prosecutor in a particular case, the case cannot be tried by his court. For example, if a division commander had preferred charges, the. accused could not be tried by a general or special court­martial appointed by him.. The charges would have to be tried by a special or general court appointed by superior authority-e. g., the corps
commander. The fact that an appointing authority is an accuser or prosecutor as to charges in one case does not, of course, mean that a general or special court appointed by him cannot try other cases in which he is not the accuser or prosecutor.
b. Summary courts-martial. There is no prohibition against trying an accused before a summary court-martial appointed by the accuser or prosecutor in the case. It is generally desirable, however, where the officer who appointed the summary court is the accuser or prosecutor, to forward the charges to higher authority for reference to another summary court.
54. COMPOSITION OF COURTS-MARTIAL. a. Who may serve as mem­bers. Only officers are competent to serve on courts-martial. By “officers” is meant “commissioned officers” (AWl). Warrant officers and flight officers are not “offi!cers” within this definition and may not be detailed as members, trial judge advocate, defense counsel, or as summary court officers. .An officer who is the “accuser”.in a particular case or who is “witness for the prosecution,” i. e., one called as a witness by the prosecution at any stage of the proceedings (pars. 4, 5, 59, MOM; AW 9, 10), is ineligible to sit as a member in the trial of that case. If, therefore, a member of the court is called as a witness for the prosecution, he must, before qualifying as a witness, be excused from further duty as a member of the court in the case (par. 59, MOM). This disqualification does not apply to summary court officers. The summary court officer may be the accuser and chief witness for the prosecution but, in such a case, the charges should, as a matter of policy, be referred to another summary court officer for trial, if possible.
b. Number of members. Every general court-martial must have at least five members (AW 5) and every special court-martial at least three (AW 6). If less than the required number is present, a trial cannot proceed (par. 38e, MOM). Therefore, enough members over the bare minimum should be detailed in the order appointing the court so that if some members are absent or challenged, the court will not be reduced below the necessary quorum and become unable to function. Usually from seven to ten members are detailed on a general court and from five to eight on a special. One of the members of a general court-martial
must be expressly designated as law member (AW 8). Failure to desig­nate a law member renders the entire general court-martial illegal. A trial judge advocate and a defense counsel must be appointed for both general and special courts-martial (AW 11). In addition a general court­martial may also have one or more assistant trial judge advocates and assistant defense counsel when necessary (AW 11). The detail of assistant trial judge advocates or assistant defense counsel on special courts-martial is permissible, but is neither required nor customary. If so detailed, however, there should be as many assistant defense counsel as trial judge advocates. Defense counsel should be of at least equal rank with the trial judge advocate. The duties of the trial judge advocate, defense counsel, and members are discussed in chapters· 10, 11, and 12, infra, respectively. A summary court consii;’its of only one officer who combines the functions of member, trial judge advocate and defense counsel. His duties are discussed in chapter 9, infra.
c. Experience and qualifications of members. The proper functioning of the court-martial system is dependent upon the selection of qualified officers for detail to courts. For that reason, it is especially important that each general and special court have detailed one or more members with a background of military law. A summary court officer should possess a like qualification and should be selected from field officers whenever practicable. (See par. 3v, AR 235-5′, 15 May 194-2.) Where possible, officers who are lawyers should be utilized £01′ the three key positions o£ president, trial judge advocate, and defense counsel on general and special courts martial, and £01′ the additional key position of law member on general courts martial. A general or special court to which charges against a member of the Women’s Army Corps is referred will include one or more commissioned officers of the Women’s Army Corps, when available. (SeeWD Cir. 462, 1944-.)
55. ORDERS APPOINTING COURTS. a. Preparation. A£ter final selec­tion o£ personnel for a court-martial has been made and approved by the commanding officer, the formal order must be prepared, mimeographed and published. Orders appointing general courts-martial are usually prepared under the supervision o£ the staff judge advocate, whereas orders appointing special and summary courts-martial are usually pre­pared by the adjutant of the organization appointing the court, e. g., regiment, detached battalion, etc. Forms for orders appointing general, special, and summary courts are set out in appendix 2, MCM. Examples o£ orders appointing special and summary courts-martial are contained in appendices 3 and 9 infra respectively. The order appointing the court is a special order and subject to the provisions o£ paragraph 4-, AR 310-50, 1 December 1944-, as to form, contents, and abbreviations.
b.
Detail of members. The orders appointing general and special courts will name the’ members in order o£ rank, personnel o£ the prosecu­tion, and the defense being named after the members of the court. The grade, name, serial number, and organization or arm of service, o£ each officer detailed should be stated, e. g., “MAJ WILFRED E KESSEL­RING, 0322618, 21st In£.” The appointing order should not designate a president, since the ranking member present at any particular sitting is automatically the president.

c.
Amending orders. When it becomes necessary to relieve members or to add new ones, the appointing order may be amended. This should not be done by deleting. certain names and inserting others-e. g., “par. 8, SO 31, this Hq, 31 Jan 1944, is amended by deleting the name of MAJ WILFRED E KESSELRING, 0322618, 21st In£, and inserting the name o£ CAPT RUDOLPH 0 MILSTEIN, 0847996, 21st In£, in place thereo£”-but by formally relieving the member and appointing his suc­cessor, viz, “CAPT RUDOLPH 0 MILSTEIN, 0847996, 21st In£, is detailed as a member o£ the SCM aptd by par. 8, SO 31, this Hq, 31 Jan 1944, vice MAJ WILFRED E KESSELRING, 0322618, 21st In£ reId.” Amending orders should bekept at a minimum.. Frequently it is no more difficult to prepare an entire new detail than to prepare an amending order

changing an existing detail. In any event, no more than two amending
orders should be issued. If it is necessary to make further changes, a new court should be appointed.
d.
Dissolving court. In appointing a court, the old court should nbt be dissolved nor the order appointing the old court rescinded or revoked. Such action would prevent the reconvening of the old court for purposes of revision proceedings if that became necessary. A court-martial is dis­solved only as a method of censure.

e.
Withdrawing cases from old court. VVhen a new court is appointed, care should be e~ercised to include in the appointing order a provision withdrawing from the old court charges previously referred to it and referring them to the new court-e. g. :

“All unarraigned cases in the hands of the trial judge advocate of the SOM aptd by par. 8, SO 31, this Hq, 31 Jan 1944, are withdrawn from that court and are referred for trial to the trial judge advocate and the SOM herein aptd.”
56.
JURISDICTION IN GENERAL. In directing trial by inferior courts, consideration must. be given to the jurisdictional limits of such courts with respect to persons, offenses, and punishments. A failure to recog­nize these limits may lead commanding officers to refer cases for trial by inferior courts-martial which the court is without power to try. In such cases the result is a void sentence which cannot be enforced.

57.
JURISDICTION OF GENERAL COURTS-MARTIAL. General courts-mar­tial have power to try any person subject to military law for any crime or offense made punishable by the Articles of War (AW 12) and upon conviction may, within certain limitations, punish such person at its discretion (par. 13, MOM). As to limitations on a court’s discretion in imposing a sentence, see paragraphs 117 through 120, infra, and para­graphs 102 through 104, MOM.

58.
JURISDICTION OF SPECIAL COURTS-MARTIAL. a. As to persons. Special courts-martial have power to try all persons subject to military law except “commissioned officers and persons of equivalent, relative or assimilated rank” (par. 14, MOM). Warrant officers, flight officers, and aviation cadets are, therefore, triable by special courts-martial. Both special and summary courts-martial have jurisdiction over civilians sub­ject to military law, but that authority should not be exercised in this country without consent of the War Department.

b. As to offenses. Any offenses not capital may be tried by special court-martial. A capital offense is any offense which the Articles of War expressly provide may be punished by death (AW 43). Thus, a sentinel who sleeps on his post in time of war in violation of AW 86, commits a capital. offense because that Article provides that he shall “suffer death or such other punishment as the court-martial may direct.” Since the offense is one which is expressly made punishable by death
by the Article of War defining it, the offense is capital. The following offenses are capital: desertion in time of war (AW 58); advising or aiding another to desert in time of war (AW 59) ; assaulting or willfully disobeying a superior officer (AW 64) ; mutiny or sedition (AW 66, 67) ; misbehavior before the enemy (AW 75) and other war offenses (AW 76-78,81-82); misbehavior of a sentinel in time of war (AW 86), includ­ing sleeping on post, drunk on post, or leaving post before regularly relieved; and murder or rape (AW 92). These capital offenses, except murder, rape, and spying (par. 14, MOM), may be tried by special court­martial if, but only if, prior to trial the officer exercising general court­m~rtial directs the particular case ~o be so tried (AW 12, 13). For example, the commanding officer of a regiment cannot refer charges of sleeping on post in time of war (AW 86) to a special court-martial with­out express authority from the, officer exercising general court-martial jurisdiction, i. e., the division commander. If he believes the case should be tried by a special court-martial, he must forward the charges to division headquarters. In such case, the division commander could in his discretion either refer the case for trial to a general or special court­martial appointed by himself, or return the charges to the regimental commander with authorization to try them by special court-martial. In event of trial of a capital case by special court-martial, the punishment that may be imposed is limited by AW 13 (pa,r. 14, MOM). No capital case therefore, should.be referred to such a court for trial runless it is clear that the punishment it has jurisdiction to impose is adequate under the circumstances. Nor does the power to try a capital case give it jurisdiction over persons otherwise not subject to trial by special court­
martial, e. g., officers (AW 12, par. 14, MOM).
c. As to punishments. Special courts-martial have power to adjudge confinement of not more than 6 months, and forfeiture of two-thirds pay per month for not more than 6 months (AW13). They may adjudge restriction to the limits, detention of pay, and hard labor without confine­ment, for not more than 3 months. They may also adjudge a reprimand, admonition, and reduction of :. noncommissioned officer or private first class.. They cannot adjudge death, dishonorable discharge of an enlisted man, or dismissal of an officer (par. 15, MOM).
59. JURISDICTION OF SUMMARY COURTS-MARTIAL. a. As to persons.
Summary courts do not have jurisdiction over commissioned officers, warrant or flight officers, aviation cadets, master sergeants, first sergeants, or technical sergeants under any circumstances. They have jurisdiction over privates, privates first class, and noncommissioned officers below the grade of technical sergeant. Such noncommissioned officers, however, cannot be tried by summary court if they object, unless the trial is authorized by the officer exercising general court-martial jurisdiction -over them (par. 16, MOM). For example, a regimental commander
could not refer charges against a corporal in his command to a summary court-martial over the corporal’s objection. In such a situation the division commander (who exercises general court-martial jurisdiction) might authorize trial by summary court-martial, after which the regi­mental commander could refer the charges to such court. It should be noted that technicians are noncommissioned officers. Privates and pri~ vates first class can be tried by summary courts regardless of their objection.
b.
As to offenses. Summary courts-martial have jurisdiction to try any offense not capital. They have no power to try a capital offense under any circumstances. For a discussion of capital offenses, see paragraph 58b, supra.

c.
As to punishments. Summary courts-martial have power toadjudge confinement of not more than 1 month, restriction to limits for not more than 3 months, and forfeiture or detention of two-thirds of 1 month’s pay (AW 14). The maximum amount of confinement and forfeiture (or of confinement and detention) may be imposed together in one sentence. Since confinement and restriction to the limits are both forms of deprivation of liberty, only one of these may be imposed in the maxi­mum amount in anyone sentence (par. 17, MOM). Summary courts have power also to impose a reprimand or admonition and to adjudge reduction of noncommissioned officers or privates first class (par. 103d and e, MOM). They cannot, adjudge death, dishonorable discharge of an ,enlisted man or dismissal of an officer (par. 103b, MOM) .

CHAPTER 9
SUMMARY COURT OFFICERS

60.
NATURE AND FUNCTIONS OF SUMMARY COURT. The function of a summary court is to dispense justice promptly for relatively minor offenses under a simple form of procedure. A summary court-martial consists of a single officer, called the “summary court officer,” who performs the functions not only of a court, but of the trial judge advocate and defense counsel as well. The summary court must investigate both sides of the matter thoroughly and impartially and see that the interests of both the Government and the accused are fully conserved (par. 82, MOM). A summary court proceeding is a true “trial,” its procedure following that prescribed for general courts~martiriJas far as practicable. Its very name indicates, however, that its proceedings will be taken promptly and speedily completed.

61.
SELECTION OF SUMMARY COURT OFFICERS. Since far more soldiers are tried by summary courts than by all other types of military tribunals combined, the fairness and efficiency of the entire court-martial system may be judged by the manner in which such proceedings are conducted. It is, therefore, of utmost impqrtance that each summary court officer not only possess qualities of leadership, fairness and dignity, but that he be so well grounded in rules of summary court procedure as to enable him to maintain a judicial atmosphe~ in his proceedings at all times. The appointment of inexperienced junior officers with iittle or no background

-in military law or the h!!ndling of men defeats the very purpose of a summary cburt trial. The duty of acting as summary court officer is not one., therefore, that can be rotated’ indiscriminately among officer per~ sonnel of a command. As the summary court must act impartially, any ‘close personal knowled-ge of the soldier or the offense is a handicap. It is, therefore, inadvisable to refer to a summary court officer charges again~t personnel of his own immediate command with whom he has had close personal contact. Although there is no legal prohibition against the accuser or prosecutor serving as summary court officer, a fairer trial will result if such cases are referred for trial to someone having no knowl­edge of the persons or offenses involved. Of course, in small deta.chments, with a.single officer orwith a very limited number of officers present, if
632260′–45—-.5
the maintenance of discipline requires immediate trial and punishment, the charges may have to be tried by an officer familiar with the ca~e, even the accuser himself. That the law provides for. (See pars. 53 and 54a, 8up1·a.) Where possible, however, such a re.sult should be avoided.
62. DUTIES OF SUMMARY COURT OFFICER BEFORE TRIAL. a. The first knowledge that a summary court officer ordinarily will have of a case will be upon his actual receipt of the charges referred to him for trial. Since usually neither a letter of transmittal nor a report of investigation will accompany the charges, his only information of the case may be the contents of the charge sheet itself. This he will carefully examine, both to determine the offenses to be tried and the evidence, witness and docu­mentary, that may be adduced to prove them. .Although he should cor­rect and initial slight errors or obvious mistakes in the·charges, he has no authority to make any substantial change therein. As soon as the charges and accompanying papers, if any,have been examined and a knowledge obtained as to· the proof necessary to sustain the charges, immediate urangements should be made for trial. That is of especial importance if the accused is in arrest or confinement. It should be pos­sible in the normai case to arrange for the trial to take place within 24 hours after receipt of the charges. The summary court officer then notifies all witnesses and the accused of the time and place set for trial. The organization commanders of military witnesses, including the accused, should be requested (informally, by telephone or otherwise) to have them present. If the accused is in confinement,’ arrangements for his attend­ance may be made with the appropriate prison officer. Civilian wit­nesses may be notified, by letter or telephone, of the time of the trial. The summary court officer has the same power as the trial judge advocate of a general or special court to compel the attendance of civilian witnesses by
subpoena and to take depositions in proper cases. (See par. 68c and e,
infra.)
b. The case of Private Merton T. Johnson (app. 4 infra) may be con­sidered to illustrate the procedure followed by a.summary court officer. On 13 October 1943, Major Charles B. Foster, 181st Infantry, Summary Court, received the original and two copies of a charge sheet, together with a certificate of previous convictions extracted from the service re~rd of accused showing a prior conviction. He then studied the charge sheet from which he learned that the accused had been in confinement since 11 October 1943, and that he was charged with two offenses: being drunk in camp and breach of restriction, both in violation of the 96th Article of “Var. He noted the names of three witnesses listed on page 1 of the charge sheet: Captain Arthur M. Stern, Company C, 181st Infantry, Corporal Zachary T. Kellogg, Company K, 181st Infantry, and Private Thomas D. Graves, 26th Military Police Company. He first called Captain Stern., then the commanding officers of the two enlisted witnesses and arranged for them to be present in his office at 0900 the next morning. He next called the prison officer at the post guardhouse and arranged for the presence of accused at the same time.
63. CONDUCT OF TRIAL. a. Explanation of accused’s rights. At the appointed hour; when all witnesses and, the accused have arrived, the court will proceed with the trial. Witnesses should be excluded from the proceedings of the court until called to testify. The accused should be called in and advised of the following matters: the nature of the
.proceeding; who appointed the court; the name of the accuser; the names of the witnesses to be called so far as is known; the right of accused to cross-examine them or have the court ask any questions desired; the right of accused to call any witnesses or produce any evidence in his own behalf, with assurance that the court will assist him in every way possible to do so; and his right to testify, to remain silent,or to make an unsworn statement at the proper time. If accused desires to produce additional witnesses or other evidence, the court should recess briefly at this point to arrange for having the witnesses summoned or the evidence produced.
b. Arraignment and pleas. After making sure that accused under­stands his rights and is as much at ease as possible under the circum­stances,the summary court should read or shmv the charges and specifi­cations to him. He should be asked if he understands the nature of the charges. If he indicates that he does not, additional explanation should be made. He should·then be asked how he pleads to each specification of each charge and to each charge. If he pleads guilty to any specifica­tion or charge, the meaning and effect of his plea should be explained
to him, including the maximum sentence the court could impose if the plea is allowed to stand. (For form of explanation of effect of plea of guilty, see app. 1, p. 149 infra.) The court should change the plea of “guilty” to “not guilty” if the accused requests it or if there is any doubt as to his understanding and desire to plead guilty, or if at any time during the trial he makes a statement, sworn or unsworn, inconsistent with the plea. If the guilty plea is changed, the c(mrt will proceed in the same way as if a plea of “not guilty” had been originally entered. !fa plea of guilty to all specifications and charges is allowed to stand, the court may proceed at once to find the accused guilty and to impose an appropriate sentence. Despite the plea of guilty,however, the court, if it SO desires, may summon witnesses to clear up any doubtful matters or to testify to any mitigating or extenuating circumstances in connection with the com-.
mission of the offense. If after hearing this evidence the court should believe the plea of guilty to have been improvidently entered it may allow a withdrawal of the guilty plea.
c. Conduct of trial proper. If the acC’Used enters a “not guilty” plea to any offense charged, witnesses must be called or evidence produced to
establish every element of every offense to which he has so pleaded. Wit” nesses for the prosecution will first be called. They will be sworn and interrogated by the prosecution as to all matters relevant to the offense charged, after which the accused will be extended the right to cross­examine them. Theaccused may question them himself, or suggest ques­tions to be asked by the court, or decline to exercise his right. The court will carefully follow the testimony but will not attempt to record it. After all prosecution eVIdence has been offered, evidence for the defense, including any testimony or statement by the accused will be received. The rights of the accused as a witness should be fully explained to him. (For a form of such explanation, see app. 1, pp. 152-153 infra.) The ac­cused may testify or make an unsworn statement at any stage of the presen­tation of his defense. Ifthe accused elects to make an unsworn statement, the court may not cross-examine or question him on the statement par. 76,
(MCM). .. .
d. Findings and sentence. At the conclusion of all evidence on both sides, the court, after considering the evidence, should arrive at findings of guilty or not guilty as to each offense charged. A summary court, like members of a general or special court, must be satisfied beyond a reason­able doubt before it can find an accused guilty. (See par. 104, infra.) If the accused is found not guilty of all offenses charged, the court will advise the accused that he has been acquitted of all charges and specifica­tions. If, however, the court has convicted the accused of any offense charged, or of an offense included in any offense charged, it will not an­nounce any of its findings at that time. It will rather determine the sentence to be imposed, taking into consideration any evidence of previous convictions and the personai data as to the accused appearing on the first page of the charge sheet. The evidence should be shown or read to the
accused who will be asked whether it is correct. If he claims it is not correct, the court will take action as indicated in paragraph 79b, MCM. A discussion of findings and sentences will be found in chapters 15 and 16. After deciding upon its sentence, the court should announce both its find­ings and-sentence immediately, i. e., before the accused leaves, unless otherwise directed by the appointing authority. In the case of Private Merton T. Johnson (app. 4 infra) the court would have announced its findings and sentence as follows: “Private J olmson, the court finds you: Of all the Specifications and the Charge: Guilty, and sentences you to perform hard labor for fifteen days and to forfeit eighteen dollars of your pay.”
64. DUTIES OF SUMMARY COURT OFFICER AFTER TRIAL. The duties of the summary court are not over at the conclusion of the trial. So much of the proceedings as relate to pleas, findings, and sentence or acquittal must be recorded in the appropriate place on page 4 of the charge sheet (par. 86 an,d app. 8, MCM). All three copies of the charge shoot will be completed. For the completed l~ecord of trial in the case of Private John­
son, see appendix 4: infm. If any previous convictions were considered by the court, as in the Johnson case, a notation of that fact and the number considered will follow the sentence in the column headed “Sentence or acquittal and remarks” on page 4: of the charge sheet. If the accused were a noncommissioned officer and objected to trial by summary court, a nota­tion that trial was authorized by an authority competent to bring the accused to trial before a general court-martial should be made in the same column. A statement that the meaning and effect of the accused’s plea of guilty (if any) and his right to testify were explained to him is Hot required (see note, app. 8, MOM), but is desirable, and may be placed in the same column, e. g., “J\fOM, par. 82 complied with,” or “Meaning and effect of plea of guilty explained to accused.” The summary court will then sign the record.in triplicate and will forward all three copies, and .accompanying papers, without letter of transmittal to the reviewing authority, i. e., the authority who referred the case for trial or his suc­cessor (par. 86, MOM) . Ifthe summary court officer is theonly officer present with the command, he will so state in signing the record and instead of forwarding the record, will hold it as transmitted to himself as reviewing authority (par. 86, MCM). The action to be taken by the
reviewing authority and the disposition to be made of the record are discussed in chapter 18, infra.
CHAPTER 10
TRIAL JUDGE ADVOCATE

65. FUNCTIONS AND DUTIES IN GENERAL. a. A trial judge advocate ­must be appointed for every general and special court martial (AW 11). He is the prosecuting attorney who represents the United States in the trial of cases and, under the direction of the court, prepares the record of trial. -It is his duty to bring charges to trial promptly, to make a full, systematic, and fair presentation of the case, to execute all orders of the court, to advise the court in matters of procedure arid to see that the record of its proceedings is accurate and in proper form. Upon him rests a distinct responsibility for a fair and complete trial, free from prejudicial error, ending ill a just result. Unless he is capable, familiar with all his duties, and thoroughly prepared, the proper trial of any case is jeopardized. Although his primary duty is to prosecute, proper prosecution does not mean just obtaining convictions. It means presenting the facts to the court fully so that the truth may be ascer­tained. Any act inconsistent with a genuine desire to have the whole truth revealed is prohibited (par. 41d, MCM) . The trial judge advocate must at all times be fair and free from bias, prejudice, or hostility.
. (par. 41a, MCM). He must conduct himself as the representative of the United States, not simply as an attorney determined to win a case. If, for any reason, he cannot properly perform his duties in this manner, he should promptly report that fact to the appointing authority.
b.
In addition to a trial judge advocate, one or more assistant trial judge advocates may be appointed for every general court-martial when necessary (AW 11). The appointment of an assistant trial judge advo­cate for a special gourt-martial is neither required nor customary. An assistant trial judge advocate performs such duties as the trial judge advocate may designate. Appropriate duties include taking care of details in arranging for trial and in securing the attendance of wit­nesses, assisting in the preparation of cases, and conducting the trial of particular phases of a case (app. 5, MCM). He is, however, competent to perform any, of the duties of the trial judge advocate and may conduct the entire trial of a case if the trial judge advocate so directs. Ultimate responsibility, however, always rests upon the trial judge advocate.

c.
A trial judge advocate’s first task is to know what his duties are. They are described in detail in the Manual for Courts-Martial, particu­

S6
larly in paragraphs 41, 42, and appendix 5.. He should fully acquaint himself with those provisions and with other passages in the Manual for Courts-Martial referred to in those paragraphs. The discussion in this chapter, and in later chapters in this manual dealing with trial procedure and evidence, furnishes explanatory and supplementary ma­terial as to some of the principal functions of the trial judge advocate. There is, however, no adequate substitute for a study of the Manual for Courts-Mal’tiaJ. If he has any doubt or difficulty as to his duties in general, or as to a problem in a particular case, he should never hesitate to ask the staff ‘judge advocate of the command for advice. It is far easier to avoid errors by obtaining instructions before trial than to try to correct them after the proceedings are completed.
66. PRELIMINARY DUTIES BEFORE TRIAL. a. Examination and checkiAg of charges and accompanying papers. Suggestions as to the steps a trial judge advocate should take prior to the assembling of the court for trial are set out in appendix 5, MCM. When a case is referred for trial, there will be forwarded to the trial judge advocate the charges and accompany­iag papers. These papers should include the investigating officer’s report (if any), with its summary of the expected testimony of witnesses, the record of previous convictions of the accused, in some cases documentary evidence listed on the charge shoot, such as an extract copy of a morning report, and, in general. court-martial cases, the staff judge advocate’s recommendation for trial by general court-martial. These papers should be in duplicate. The trial judge advocate should examine all papers received to see that none appear to be missing. He should then check the order appointing the court and the 1st indorsement on the charge sheet to determine that the charges were referred to him for trial. Next he should examine the charges and specifications to see if they are in proper form, comparing them with the appropriate form or forms in appendix 4, MCM. If he finds any obvious error in form or slight mistake in names, dates, amounts, or spelling, for example, he should correct and initial such defect. He cannot, however, make any substantial change in the charges or specifications. .If he discovers any serious irregularity in the order appointing the court or in the charges themselves, he should promptly report that fact to the appointing authority. After determining that the charges and allied papers are complete and in correct form, he should
separate the duplicate copy ofthe charge sheet and of each of the allied papers to make up a set for service on the accused. He should not include in the papers to be served any: memorandum or letter containing instruc­tions for the trial of the case which may have been sent to him by the staff judge advocate.
.. b. Service on accused. Immediately after the papers have been re­ceived and checked, the tria’! judge advocate should serve the accused. This consists in delivering personally to the accused a copy of the charge sheet. Copies of the allied papers may be either deliver(ldto the accused himself with the charge sheet or to defense counsel. At the time of service, he ‘may inquire of the accused whether the data appearing on the first page of the :charge sheet are correct. If incorrect, he should check
, with the custodian of the service record of the accused and have the state­ment corrected. After delivering a copy of the charges to the accused, he should complete and sign the certificate of service appearing on page 4 of the charge sheet, both on the original charge sheet and on the copy delivered to the accused. He should at once notify the defense counsel that the accused has been served. Service on the accused should not be delayed. In a general court-martial case, the accused should not ordinarily be brought to trial within 5 days. after service of charges upon him without his express consent. Any delay in serving charges, therefore, delays the beginning of trial. Similarly in a special court-martial case, although there is no definite limit as to the time within which trial may be begun after service, the accused is entitled to a reasonable time after service within which to prepare his defense.
67. PREPARATION OF CASE. a. Analyzing case. After the foregoing preliminary matters have been taken care of, the trial judge advocate begins the preparation of the case for trial. Complete and painstaking preparation before trial is the surest method of success. The first step is to know what has to be proved to establish each of the specifications and charges. That requires a study of the paragraphs in the Manual for Courts-Martial (ch. XXVI) discussing the offenses in question. Take, for example, the case of Private Lennie O. Bark, the record of which case­appears in appendix 2 infra. Three charges are involved: willful disobe­dience of a superior officer in violation of AW 64, escape from confinement in violation of AW 69, and desertion in violation of AW 58. The trial judge advocate would first read the paragraphs of the Manual for Courts­Martial dealing with those three offenses (pars. 134b, 139b, and 130a, respectively) and note, under the heading Proof in those paragraphs, what he must prove to establish each offense. He might write down the following:
Charge I. Willful disobedience (par. 134b, MCM).
a.
The accused received a command from Lieutenant Loganby.

b.
Lieutenant Loganby was the accused’s superior officer.

o.
The accused willfully disobeyed the command. Charge II. Escape from confinement (par. 139b, MCM).

a.
The accused was duly placed in continement.

b.
He freed himself from confinement before being released by

proper authority.
Charge III. Desertion (par. 130a, MCM).

a.
The ~cused absented himself without leave from his place of serVice.

b.
Heintended at the time of absence to remain away permanently from such place.

c.
He was absent from 4 October 1943 until he was apprehended at Charleston, S. C., on 26 November 1943.

Having thus learned what he must prove, he would carefully study the statements of the witnesses attached to the investigating officer’s repprt, observing how these bits of testimony will establish each of the required elements of proof.
b.
Interviewing witnesses. With the case fully in mind, he should then interview personally every witness who is expected to tltstify to anything other than purely routine matters. Calling a witness to testify without first knowing what he is prepared to say is a dangerous pro­cedure. From a personal interview-before trial, the trial judge advocate is able to make a study of each witness, test the accuracy of his story, check inconsistencies, and observe his ability to express himself and to answer questions. He may also obtain new bits of information about the case or clues to other evidence not disclosed by the investigating officer’s report. It is his duty to learn all that he can abont the facts involved and he should never fail to investigate any evidence or to interview a witness simply because that evidence or witness is not listed on the charge sheet or referred to by the investigating officer.

c.
Arrangement of evidence. His next task is to decide just how he is going to present his case through the testimony of these witnesses. The general method of presenting a case is to prove each offense in the order charged and to prove the events relating t~ each offense chrono­logically in the order in which they occurred. In other words, the case should be presented to the court in the manner in which a story would be told, beginning with the first event. In the Bark case, the chronologi­cal order of events was as follows: the accused disobeyed a coinmand of Lieutenant Loganby, as a result of which he was placed in confinement, from which he escaped and_deserted the service. The trial judge advo­cate would plan to present his .evidence to establish the events.in that order. Turning to the outline which he has made of the elements of the offenses (par. 67a, supra), he will observe that to prove the first charge he must establish that Bark received an order from Lieutenant Loganby, his superior officer; and willfully disobeyed this order. Obviously, Lieu­tenant Loganby will be the key witness on this charge. He will testify that he ordered the accused to go out on the drill field, that he is the company commander and the snperior officer of the accused, and that the accused disobeyed his order. The willful nature of the accused’s dis­obedience is shown by bis flat refusal to obey and the character of his remarks at the time. Lieutenant Loganby’s testimony is corroborated by Lieutenant Grant, Sergeant Pitch and Sergeant Kelley. It will be desirable to call at least one of these to testify, but in view of the com­pleteunequivocal statements of Lieutenant Loganby it is· hardly necessary

to take up the time of the court having the same story told four times. Normally Lieutenant Grant would be the corroborating witness whom
the trial judge advocate would select, since he is an officer and was present throughout the entire occurrence. However, 0n interviewing him the trial judge advocate learned that he will probably not be present at the time of trial because he has been ordered to school. Since the two sergeants also can testify to the entire event, it will be sufficient to call one of them. Sergeant Pitch’s story as to the remarks made by the accused is a little more complete than Sergeant Kelley’s and after inter­viewing both, the trial judge advocate observed that Sergeant Pitch appeared to remember the events more clearly and could express himself better. He decides, therefore, to use Sergeant Pitch. As to the second charge, escape from confinement, he. has learned from defense counsel that the accused intends to plead guilty. In the course of the prepara­tion of his case, he properly inquired from defense counsel how the accused expected to plead so that he might know in advance, if possible, whether all the issues in the case were going to be contested. He did not, of course,ask the accused himself, nor did he attempt in any way to induce a plea of guilty (par. 41e, MCM). Despite the expected plea of guilty, he prepares to offer some evidence on the issue of escape, since the accused may change his mind and since, in any event, at least a prima facie case should be proved in every case where there is a plea of guilty as a guide to the reviewing authority and for subsequent consideration of the case for clemency. The fact of confinement can be established by the entry of duty to confinement in the morning report of Company B; the organization to’ which the accused was assigned, and by an extract copy of the guard report of the 128th Infantry. ,The fact that the accused escaped is shown by the same evidence-i. e., the entry in the morning report of confinement to absence without leave, and the entry in the guard report of such escape. The third charge, desertion, requires establishing that the accused absented himself without leave on 4 October 1943, that he intended not to return to the service and that his absence continued until terminated by apprehension on 26 November 1943. The accused intends to plead guilty to absence without leave, although deny­ing desertion, so that element is admitted. It will have been proved in any event by the entry on the morning report used to prove escape from confinement. The termination of that absence by apprehension will be proved by the testimony of Sergeant Sellins, the military policeman who’ arrested him in Charleston, S. C., on 26 November 1943. His intention not to return will be proved from various facts and circumstances. In most cases, direct evidence of an intention not to return is not available. The court must draw an inference as to intention from the accused’s acts, the duration of his absence, the manner in which it was terminated, and other circumstances. In this case, the court-martial would be justified in concluding that Bark did not intend to return to the service on the basis of his statements to Lieutenant Loganby that he did not like the Army and would not do any more work, his escape from confinement
while awaiting trial on a capital charge, his absence for 6 weeks and failure to surrender, although he was not £ar from his own station, and the termination of his absence by apprehension. In addition to this circumstantial evidence, however, there is in this case also direct evidence of the intention not to return, i. e., the statement made by the accused to Sergeant Sellins that he wasn’t going back to the Army. Thetesti­many of Sergeant Sellins on this point, if admitted in evidence, will leave no possible question as to desertion. The trial judge advocate recognizes that the defense counsel will probably object to this damaging evidence’on the ground that such a statement made to a military police­man is an involuntary confession. He is prepared to meet thatargument by bringing out the fact that the sergeant did not· urge the accused to make the statement or threaten him or promise any reward or favor. However, he knows that th~re is some question whether this evidence will be admitted. In any event; there is enough circumstantial evidence. of intention not to return so that the case will not fail even if the sergeant’s testimony is excluded.
d. Preparation of questions and opening statement.. Having thus out­lined the method by which he will prove the case,’and the order in which he will call his witnesses, he notes down the principal questions he will ask each witness. An inexperienced trial judge advocate will often find that unless he has clearly in mind just how each witness is to be ques­tioned, he may either forget to bring out some important £act or be unable to phrase his questions properly to elicit the desired information. As he acquires more experience it may become unnecessary to make any notes in advance, but for his first cases it may be desirable to go to the extent of writing out each question in full. Itis also good practice to write out an opening statement, that is, a brief statement of the issues to be tried and what he expects to prove, which will be made at the trial immediately before evidence is introduced. An opening statement is not required, but it is desirable in any case involving numerous issues or complicated facts. It enables the court to grasp at the outset the theory of the case and to relate to the whole picture each piece of testimony as it is introduced. By thus preparing a simple and concise statement of what he intends to prove, and the facts that will be shown by the evidence to establish that proof, he makes sure that he has his case well in hand.
68. ATTENDANCE OF WITNESSES; STIPULATION; DEPOSITIONS. a. In gen­eral. Before the date for trial, the trial judge advocate must arrange to have witnesses who are to testify in person present at the trial. Before deciding that the presence of a witness is necessary, he should first con­sider whether the evidence which that witness is expected to give can as well be covered by a stipulation or deposition.
b. Stipulations. A stipulation is an agreement between the parties either as to facts, i. e., that a certain fact is true,or as to testimony, i. e.,
that if a certain witness were present in court he would testify as follows : (then set forth the stipulated testimony) (par. 126b, MOM). For ex­ample, the parties might agree that the value of an automobile which the accused was alleged to have stolen was $350, or that the officer who au­thenticated an extract copy of a morning report was the legal custodian of that record, or that the accused had previously been convicted of certain offenses. Such an agTeement would be a stipulation a~ to facts. (See app. 11, infra). Or, for example, the defense,while not admitting as a fact that the accused was in civilian clothes when apprehended, might be willing to agree that the policeman who arrested the accused wouTdtestify that the accusfild was dressed in civilian clothes when arrested. Such an agreement would be a stipulation as to testimony..(See app. 12, infra.) It is the duty of the trial judge advocate and the defense counsel to save the time and expense of having a witness brought to the trial by stipulating as to unimportant matters or undisputed facts (pars. 41b, 45b, MOM). Thus, if both the prosecution and the defense al’e satisfied that the value of an U:utomobile· alleged to have been stolen is $350 and that such value could easily be proved by calling as witnesses certain automobile dealers, there is no point in incurring the expense of having such witnesses brought to the trial and taking up the time of the court in hearing their testimony. A stipulation either that the automobile was of that value or that a cer­tain named witness would so testify would be appropriate. Stipulations, however, should not be made as to vital matters amounting either to a complete defense or substantially admitting the accused’s guilt (par. 126b, MOM) . For example, if the accused pleaded not guilty to a charge of desertion it would not be p’roper to stipulate -that he intended to desert the service, since such a stipulation would be entirely inconsistent with his claim that he was not guilty and would practically amount to a con­fession. Similarly a stipulation that the accused was 50 miles away from the scene of the crime at the time it was committed should not be entered
into by the prosecution since in effect it constitutes a complete defense.
c. Depositions. If a witness cannot personally appear at the trial for any reasonable cause, such as sickness, age, or imprisonment, or if he lives or is about to go outside the state where the trial is to be held or more than 100 miles away, his deposition may be taken to be used in evidence (AW 25). That is, questions by both sides, either written or oral, will be submitted to him at his home or other place where he is found and his answers will be written down and sworn to before some person who has power to administer oaths, such as notary public or an officer men­tioned in AW 114. These written answers constitute his deposition and may be introduced in evidence in lieu of his testimony in person. A depo­sition may be introduced in any case by the defense. The prosecution may introduce it in any case that is not capital, but may not introduce it in a capital case unless the defense expressly consents in open court to its use. Before arranging to have a witness appear in person, the trial judge advocate should consider whether a deposition will answer the purpose without involving equal or greater inconvenience or e~pense (par. 97a, MCM). Thus, if a civilian witness in a larceny case lived outside the state or more than 100 miles away from the place of trial, it would be possible for the trial judge advocate to use his deposition instead of having him testify in person. Of course, the testimony of a witness before the court often creates a stronger impression than the reading of his written testimony. The trial judge advocate must balance the advantage to be derived from his·testimony in person against the inconvenience, possible delay in trial, and expense to the Government involved in summoning him as a witness. The procedure for taking depositions is fully described in paragTaph 98, MCM. A completed deposition is set out in appendix 13,
infra. .
d.
Attendance of military witnesses (par. 970 MCM). H the witness is in the military service and stationed near the place of trial, the trial judge advocate will informally notify him to attend, either orally or in writing. In the case of an enlisted man, such notice should be given to his commanding officer so that he can arrange for-the presence of the witness. Ordinarily a witness should be notified at least 24 hours before the time when he will be required to start for the trial.

e.
Attendance of civilian witnesses (par. 97b MCM). A civilian wit­ness is usually willing to attend voluntarily if arrangements are made with him in advance and he is informed that he will obtain his fees and mileage going to and returning from the place of trial. Unless the trial judge advocate believes that the witness will not come unless formally served, he will simply mail to the witness a subpoena (WD AGO F’orm 117) in duplicate and a return addressed envelope, with the request that the. witness sign the acceptance of service on one copy of the subpoena and return the copy. H,however, the trial judge advocate believes that the witness will not attend unless required to. do so, he will arrange to have the subpoena. formally served on the witness. While such service may be made by any person, it should normally be made by an officer. It the witness is a considerable distance from the station of the trial judge advocate, the subpoena may be· sent to the commanding 6fficer of a station near the witness with the request that he arrange to have it served. A completed subpoena, with a certificate of service, appears in appendix 14, infra. Subpoenas should be issued to a civilian witness so that he will have

24 hours notice before starting to the trial.
f. Attendance of witnesses for the defense. Upon request by defense counsel, the trial judge advocate should make arrangements to procure the attendance of witnesses desired by the defense. Defense counsel may withdraw his request for the attendance of a witness if the trial judge advocate enters into stipulations as to facts or testimony which are undis­puted or unimportant. If the testimony of a witness requested by the defense seems to be unnecessary, or it appears that a deposition of that witness will fully answer the purpose, the trial judge advoca:te may take the matter up with the appointing authority or the court if during trial, before incurring the expense and inconvenience of summoning the witness. Unless the request by defense counsel is unreasonable, however, any witc ness requested by him should· be summoned. .
69. ARRANGING FOR TRIAL. a. Notifying members, witnesses, and the accused. He should arrange with the president of the court as to the time of the trial, and give adequate notice to the members of the court and all others concerned, such as witnesses, of the hour, date, and exact place of meeting. This notice can take any form, even that of an oral communication. All that is required is that those concerned have suf­ficient advance information so that they will be present at the trial. (See appendix 10, infra, for suggested form of written notice to members of the court.) He must also make arrangements to insure the pres­eI1Ce of the. accused at the trial. This will require notice to the prison officer if the accused is in confinement. Unless the accused is a general prisoner, he should be dressed in a service uniform, not in fatigue or prison attire.
b. Preparation of courtroom, etc. The trial judge advocate is respon­sible for obtaining a suitable room for the trial and having it supplied with the necessary tables, chairs, stationery, etc. He should have ‘pre” pared for each member of the court a’typewritten copy of the charges and specifications in the case; The court is not entitled to examine the charge sheet·itself or any data, appearing on the first page of the charge sheet. Unless, therefore, each member has before him a copy of the charges and specifications, it may be difficult for him to follow the case, particularly if the specifications are numerous or complicated.
70.
DUTIES DURING TRIAL. At the trial, it is the duty of the trial judge advocate to present the case against the accused. He should be familiar with the provisions of the Manual for Courts-MartiaJ dealing with trial procedure, contained in paragraphs 49 through 84. A few of the import­ant matters which may arise are discussed in chapter 13, infra. Appen­dix 1, infra, contains an outline of the procedural steps to be taken in any case. Appendix 2, infra, sets out the complete transcript of the proceedings in the trial of Private Bark before a general court-martial showingJlOw that case was presented by the trial judge advocate. Use throughout the trial of the procedural outline in appendix 1 will enable any trial judge ad­vocate to cover all the formal procedure and guide him in the presenta­tion of his case. In addition to trial procedure, a trial judge advocate must have some knowledge of the rules of evidence. Chapter XXV, Manual for Courts-Martial (pars. 110 through 126) compresses into some 30 pages a complete treatise on those rules. A trial judge advocate should consider such portions ofthat chapter as bear upon problems raised in his particular case. A few of the more common problems of evidence which arise are discussed in chapter 14, infra.

71.
DUTIES AFTER TRIAL. a. Report of result of trial. Immediately after final adjournment of the court in any case, toe trial judge advocate must notify the commanding officer of the accused as to the result of the trial (par. 41b, MCM). He must make this report even if the court did not announce the result of the trial in open court. The “commanding offi­cer” to be notified is the post, regimental, or similar commanding officer of the accused, even though {he court was appointed by higher authority. It is, however, desirable to send a copy of the notice also to the authority appointing the court in such case. The purpose of the requirement is to permit the commanding officer to take prompt and appropriate action as to the restraint of the accused (par. 19, MCM), such as releasing him if he is in confinement and has been acquitted, or imposing some appro­priate restraint on him if he has not theretofore been restrained and has been sentenced to confinement. A form for a report of the result of trial is set out in appendix 15, infra.

b.
Preparation of Record. It is the responsibility of the trial judge advocate to prepare, or cause to be prepared, the record of trial (par. 41b, 85a, MCM) and to make proper dispositi0n of it. The preparation and disposition of records of trial are discussed in chapter 1’l, infra.

c.
Preparation of vouchers. The trial judge advocate should also com­plete the voucher for fees and mileage of a civilian witness and, if pos­sible, deliver the vouchers to the witness before he leaves the place of trial so that he may promptly submit the voucher to the proper disburs­ing officer for payment (app. 5, MCM). A completed voucher for fees and mileage of a civilian witness is set out in appendix 16, infra. A similar duty exists as to the preparation of the voucher for the reporter, Hany. The compensation to which a reporter is entitled is discussed in chapter 1’7 and a completed voucher for compensation of a reporter is set out

,.
in appendix 2, p. 190, infra. .
72. WEEKLY REPORTS. Unless the appointing authority directs other­wise, the trial judge advocate is required to submit a weekly report to him, through the president of the court,of the status of cases which have been referred for trial. This report must in any event state the reasons for the delay in disposing of cases that have been. on hand for over 2 weeks (par. 41b, MCM), but the appointing authority mayre­quire an explanation for a shorter delay. A form for such a weltkly report is set out in appendix 1’l, infra.
65,
CHAPTER 11
DEFENSE COUNSEL
73. RIGHT OF ACCUSED TO COUNSEL. A def,ense counsel must be ap­pointed for every general and special court~martial (AW 11). In ad­dition, one qr more assistant defense counsel are usually appointed on every general court-martial, the number being equal to the number of assistant trial judge advQcates. Every accused tried before a general or special court-martial is, therefore, assured of having counsel to represent him and to protect his rights. He is not, however, required to lise the services of the regularly appointed defense counsel, since he may h,ave civilian or military counsel of his own selection if he chooses (AW 17). Civilian counsel must be, provided at the accused’s own expense (par. 45a, MCM). Military counsel, other than the regularly appointed de­fense counsel, may be detailed, upon request made on behalf of ,the accused through proper channels, if such person is reasonably available (AW 17; par. 45a, MCM).. A trial, of course, will not be delayed un­reasonably until the particular counsel desired by accused is available to serve. In a trial overseas, for example, the accused would not be entitled to a continuance, for the purpose of obtaining civilian counsel of his own choice, until he was transferred back to this country. The regularly appointed defense. counsel will immediately advise the accused of his right to select individual counsel (par. 43b, MCM) and should
. assist     in securing such counsel if the accused desires. If the accused does select individual counsel, the regularly appointed defense counsel will assist throughout the trial, performing such duties as individual counsel designates (par. 45b, MCM). Though there is no .legal objection to enlisted men serving as individual counsel, the practice is not de­sirable and should not be encouraged. An. accused does not have a right to be represented by counsel before. a summary court-martial since the summary court officer performs s.uch functions of a defense counsel as are necessary to safeguard his substantial rights.
74. DUTIES OF DEFENSE COUNSEL IN GENERAL. The duties of a defense counsel, whether he be the regularly appointed counselor one selected by the accused, are similar to those of a counsel for a defendant in a criminal case before the civil courts, i. e.,. to represent him at the trial and to present his side of the case. Regardless of his personal opinion as to the guilt of the accused, he must guard his interests by all legiti­mate and honorable means and present any proper ground of defense or extenuation (par. 45b, MOM). Wbile he must never resort to any fraud or trickery, he has the duty of presenting to the court everything favor­able to the accused. He should disclose promptly to the accused any personal interest Or prejudice he may have, however slight; and, of course, if such prejudice, bias, or personal interest is s<4 strong as to prevent him from representing the accused conscientiously and fairly, he should ask to be relieved before undertaking the defense. He should
, not ask, however, to be relieved merely because he may believe that the accused is guilty. An accused who admits his guilt is nevertheless entitled to be represented by counsel and to a fair and impartial trial. It is the function of the court, not of defense counsel, to determine the question of guilt orinnocence. ‘
75. DUTIES BEFORE TRIAL. a. In general. The first task of a defense counsel is to learn what his duties are. They are described in detail in pars. 43, 44, and. 45, MOM. These sections, as well as pertinent cross­references referred to in them, must be thoroughly understood before preparation of any particular case is undertaken. The defense counsel should feel free to call upon the staff judge advocate Qf his command either to discuss his general duties 01′ to present a problem encountered
.in preparing the defense of a particular case. There can be no substitute for painstaking preparation:
b.
Receipt and examination of charges and accompanying papers. The defense counsel will probably first learn of a particular case when he is notified by the trial judge advocate. Usually the accused himself will have been personally served with a copy of the charges. Defense coun­sel should first carefully examine both the charges and the allied papers, preferably before he interviews the accused. Unless he has some knowl­edge of the offenses charged, the elements comprising them (ch. XXVI, MOM), the substance of testimony of all witnesses, and possible theories of defense, he cannot intelligently discuss the case with the accused. No accused can be successfully represented without obtaining his full confi­dence, and this can never be gained J.lnless he feels that his counsel is energetically putting forth his best efforts.

c.
Interview with accused. As soon as he is acquainted with the case, he should at once arrange to interview the accused. Even if the accused is in confinement, he will be allowed to have such interviews with his counsel as may be required. The defense counsel should first tell the accused that he has been detailed to represent him, what his general duties are, and that the accused has the right to select individual counsel, civilian or military, of his own choice. The selection of individual coun­sel should neither be encouraged nor discouraged. The accused should be told that everything he discloses is confidential, and that the defense

632260°–45—-6
cannot properly be planned unless he tells the whole truth, even thotlgh it amounts to a confession of guilt. Counsel should ascertain whet-her the accused knows of any other witnesses or evidence not disclosed by the papers forwarded. A close questioning frequently reveals. deta.ils or lines of defense that may not at first be 2upparent. Even if there is no defense to the charge, there may be reliable testimony as to accused’s good character and record of service, or as to circulpstances tending to lessen the ser{ousness of the offense, which should be presented.
d. Advising accused as to pleas. In a proper case the defense counsel will explain to accused his right to plead the statute of limitations in bar of trial (par. 45b, MCM). Thus, if it appears from the charges that they are barred by the statute of limitations, for example, that more than 2 years have elapsed in a case involving absence without leave, the defense counsel should explain to the accused his right to enter such a plea. Other special pleas that may be made are discussed in paragraphs 64 through 6lf, MCM, and in paragraph ~6b, infra. A decision as to whether the accused will plead “guilty” or “not guilty,” should always be reached before trial. After a full dIscussion of the facts of the case with the accused, he should be asked how he desires to plead to each offense. If he indicates that he desires to plead guilty to one or more offenses, the defense counsel should advise him of the mean­ing and effect of sueh plea (app. 1, p. 149, infra) and of the maximum pun-. ishment he can receive for the offense. He should be told that he has a perfect legal and moral right to enter a plea of not guilty even if he knows he is guilty (par. 64a, MCM), and that, if there is any doubt in his mind; he should e11te1′ such a plea. He should not be encouraged to plead guilty to an offense in the hope that by so doing he may receive a lighter sentence. If he desires to’ plead guilty, little can be done but to offer mitigating or extenuating evidence or, in a proper case, to submit a clemency recommendation at the conclusion of the trial. (See par. 77a,
infra).
,e. Preparation of case. By way of preparation, the defense counsel will follow substantially the same procedure as the trial judge advocate in studying the charges and allied papers, analyzing the case and inter­viewing witnesses. (See par. 66, 83Jpra.) It is well to interview not only witnesses for the defense but also those for the prosecution, to prepare to cross-examine them, in the light of the expected testimony for the defense. He should make timely request of the trial judge advocate to secure the attendance of defense witnesses if he is doubtful that they will otherwise be present, knd should collaborate with the trial judge advocate in the preparation of depositions and stipulations in proper cases. (See par.
68, supra.)
76. DUTIES DURING TRIAL. a. In gen,eral. It is his duty to. present the case for the defense, just as the trial judge advocate presents th~ case for the prosecution. Like the trial judge advocate, he must be familiar with
cOl1″l’t-martial procedure and should be acquainted with the provisions of
the Manual for Oourts-Martial dealing with such matters (pars. 49 through
84, MOM). Some of the common problems arising in a trial, such as
challenges, the examination of witnesses, and arguments, are discussed in
chapter 13, infra. That discussion applies equally to the trial judge advo­
cate and defense counsel. The outline of procedure (app. 1, infra) should
be used by defense counsel as well as trial judge advocates. Defense
counsel must also have some knowledge of the rules of evidence, dealt with
in chapter XXV, MOM, some of which are also discussed in chapter 14,
this manual.
b. Calling accused as witness. Often the most important question which must be decided in the course of a trial is whether or not the accused shall testify. The defense counsel must make certain that the accused fully understands the courses of action which are open to him, i. e., to remain silent, to testify as a witness, and to make a1). unsworn statement, and the possible consequences of f0110wing each of these courses. A form for explanation of these rights will be found in appendix 1, p. 152, infra. Ifthe accused testifies under oath, he is not only subject to cross-examina­tion like any other witness, but a greaterlatitude may be allowed in cross­examining him (pars. 120a, 121b, MOM). It is, therefore, well to con­sider the possibility that in testifying as a witness the accused may make admissions, either on direct or cross-examination, as to matters essential to the prosecution’s case, thus establishing facts which the prosecution might otherwise be unable to prove. No inference of guilt can be drawn from the failure of the accused to testify (par. 120a, MOM), and no comment can be made by the prosecution on his silence (par. 77, MOM). If heis on trial for a number of offenses, he has the right to testify about only a part of them and remain silent as to the others (par. 121b, MOM). Unless the accused can testify fully and frankly to facts which constitute defense to one or more of the specificatiuns, or which show extenuating or mitigitJoing circumstances, it is usually best that he remain silent. The defense counsel should dissuade him from testifying to an unsubstantiated story which appears incredible and which cannot stand up under cross­
examination. The third possible choice, the unsworn statement, should also be carefully explained to the accused, and he should be particularly warned that any admission during the course of the statement may be treated as evidence against him (par. 76, MOM).
77. DUTIES AFTER TRIAL. a. Clemency. Ifthe accused is convicted and it is believed that the sentence of the court is too severe, under the cir­cumstances, the defense counsel may prepare a request for clemency in letter form addressed to the reviewing authority. Such a request may be signed by one or more members of the court as well as by the defense counsel (par. 81, MOM). The defense counsel should not mechanically prepare a clemency request in every case but only in the event that a good reason exists therefor.
b. Examination of record. Before the record of trial is authenticated, the defense counsel will examine and sign or initial it after making cer­tain that it accurately reflects the proceedings of the court. (See par. 128d, in/ra.)
..

CHAPTER 12 .
MEMBERS OF GENERAL AND SPECIAL COURTS-MARTIAL

78.
IN GENERAL. Members of courts-martial perform the functions of judge and jury. They hear, discuss, and weigh the evidence, de~ermine the guilt or innocence of the accused and, if the accused is found guilty, adjudge a proper sentence.. They are sworn to “administer justice, with­out partiality, favor or affection.” (AW 19). The liberty, or even life, of an accused may depend upon the correctness of their decisions. Serv­ice as a member of a court-martial is, therefore, a most important duty which must be conscientiously performed. All members, irrespective of rank, have an equal vote and an equal responsibility in deciding the question of guilt or innocence and in determining the sentence. Neither the president nor the law member has any greater power than any other member in this respect. They do, however, have some special functions to perform which are discussed in the paragraphs below.

79.
PRESIDENT. a. Definition. The ranking member present at the trial is the president (par. 39, MOM) and thus no member is ever specially detailed as such. 1£ the senior officer named in; the detail for the court is not present at any session, or if the ranking member is excused during trial, the next in rank automatically becomes the president. If the law member of a general court-martial is or becomes the ranking member present, he exercises the functions of both president and law member.

b.
Assembling the court. The president, after being consulted by the trial judge advocate, sets the date, hour, and place of the trial, pre­scribes the uniform to be worn, l}nd directs the trial judge advocate to notify the other members (including counsel) of these matters. If coun­sel for either side is unprepared to proceed to trial at the time set, or if other good reason for delaying the trial exists, the president may post­pone the assembling of the court (par. 52b, MOM) thereby in eff’ect granting a continuance. This power should not be exercised unless good cause is shown.

c.
Excusing members. The president does not have the power to ex­cuse members from attendance at the trial. Like the performance of any other military duty,a detail to serve on a court martial cannot be revoked by authority inferior to that directing it. Requests to be ex­cused from sitting on the court must be directed to the appointing

authority (par. 38a, MOM), not to the president of the court. For a
proper reason (e. g., preparation of another case), the president may in
advance of trial excuse from attendance during a trial such of the per­
sonnel of the prosecution (par. 41a, MOM), and, with the consent of the
accused, such of the personnel of the defense (par. 43a, MOM), as will
not be required.

d.
Duties during trial in general. While the trial is in progress, the president speaks for the court, maintaining order, directing the conduct of the proceedings, excusing witnesses, declaring recesses and adjourn­ments, preventing any undue delay, and controlling and announcing the results of the court’s deliberation in closed session. The president must . be thoroughly familiar with court-martial procedure. Appendix 1, this manual, and paragraphs 38, 39, and 49 through 81, MOM, should be carefully studied. (See also ch. 13, this manual for a discussion of some of the common matters arising in a trial.)

e.
Rulings on interlocutory questions. In all special court-martial eases and in general court-martial cases if the law member is not present, the president of the court must rule on all interlocutory questions, except challenges. An “interlocutory question” is one which does not finally dis­pose of the case, an intermediate question arising during the course of the trial. A motion for continuance, a plea to the jurisdiction of the court, the admissibility of a stipulation, whether certain evidence should be received, t,he propriety of statements or arguments by the trial judge advocate or defense counsel are examples of interlocutory questions. In short, any question except the decision on findings and on the sentence is an interlocu­tory question. Although a challenge of a member is an interlocutory question, it is disposed of differently. (See AW 31 ; pars. 57 and 58, MOM, and the discussion in par. 84, infra.) .On all other interlocutory questions the president must make a ruling. This ruling is always to be made”subject to the objection of any member.” Thus, if the defense should move for a continuance, the president would dispose of the question by ruling: “Subject to the objection of any member the motion is granted (or denied).” If no member objects, the ruling will stand. If, however, any member does object, the court will close to vote on the question (AW 31). The vote will be oral, beginning with the junior member and continuing in inverse order of rank. The president will ask each member how he votes and tally the results. A majority vote decides the question, and in case of a tie vote, the objection, motion, etc., is overruled (par. 51!, MOM). The members vote on the principal question, and not upon the ruling. If, for example, the defense made a motion for a finding of not guilty; the president ruled, subject to objection by any member, to grant the motion; a member objected; and the court was closed; the question to be put to a vote is whether the motion should be granted or denied, not whether the ruling should be sustained. Therefore, if there were a tie vote, the motion would be overruled. After the vote is taken the court will reopen

and the president will announce the decision, i. e., “Motion denied (or granted) ,” but not the numerical vote of the court.
f.
Concluding incidents of trial. The duties of the president during the deliberation of the court upon its findings and sentence are discussed in chapters 15 and 16, infra. In announcing the findings and sentence he must be sure to state the findings and sentence voted by the court accurately, both as to form and substance. The presid-ent will conclude the trial by stating either that the court will adjourn to meet at his call, or that it will proceed to other business. ­

g.
Authentication of· record. The president, together with the trial judge advocate, ~authenticates the record of trial. (See par. 128e, infra.)

80. LAW MEMBER. a. Definition. A law member must be detailed for every general court-martial (AW 8). He is the member of the court who is specially skilled in questions of military law and procedure and is the legal adviser of the court. It is his function not only to make rulings on questions raised throughout the trial, but to guide the court in mat­ters of procedure and to clarify points of law which may arise in dis­cussion in closed session. He has the powers of other members and votes equally with them on all questions on which a vote is required.
b.Presence at trial. The appointing authority may expressly direct that he be present at all trials or at a particular trial. If there is such a directive, the trial cannot proceed if for any reason the law member is absent (par. 38c, MOM.) If there is no such directive, the absence of the law member does not affect the validity of the proceedings. Thus, if the law member is challenged for cause and the challenge is sustained, the trial may proceed after the law member is excused. In such case, the president will rule on interlocutory questions. (See par. 7ge, supra.) Every effort, however, should be made to havethe-law member participate in all trials unless he is excused 011 a challenge for cause. He cannot be challenged peremptorily.
c. Rulings on interlocutory questions. When present, he, instead of the president, must rule on all interlocutory questions except challenges. (See par. 7ge, supra, as to what constitutes an interlocutory question.) His rulings differ from the president’s in one important respect, namely, his ruling is final on objections to the admissibility of evidence. When the president rules (as he does in a special court-martial always, and in a general court-muptial in the absence of the law member) all his rulings are subject to objection of any member. When the law member rules, all his rulings are subject to the objection of any member ewcept rulings ooncerning the admissibility of evidence. On such questions his ruling is binding on all members ofthe court and cannot be overturned by them. The reason is clear. Objections to the admissibility of evidence generally concern technical matters of law as to which the law member has more Imow~edge than any other member of the court. Thus, if an objection
were made to the admission in evidence.of an extract copy of a morning
report on the ground that it was not duly authenticated or to a question
asked a witness on the ground that it caUed for hearsay, the law member
would rule “The objection is overruled (sustained).” AW 31 lists cer­
tain matters, such as questions of recalling witnesses, the sanity of the
accused, or competency of a witness, which are not to be considered objec­
tions to the admissibility of evidence. As to these and all other questions
not involving evidence, the law member rules in the same manner as the
president, i. e., “subject to objection of any member.” (See par. 7ge,
supra, as to procedure if a member objects.) If a member objects in such
a case and the court is closed to vote on the question, the law member has
the same right as any other member to vote.
d.
Other duties during trial. In addition to his :punctions as a judge in ruling on interlocutory questions and as a member in voting on the findings and sentence, he is the general legal adviser of the court. Though he should not interfere with the orderly procedure of the court, he may call attention to and correct errors that occur even though no objection is made. If, for example, the prosecution offers incompetent or otherwise prejudicial testimony the law member may exclude it despite a failure of the defense to object. He should likewise curtail an unwarranted cross­examination of the accused or any other witness by another member of the court, especially since counsel are more reluctant to object to improper questioning by members of the court than by opposing counse1. If re­quested by the president, he should explain to accused at the proper time the effect of a plea of guilty and his rights as a witness. (See app. 1, p. 152, infra.)

e.
Duties in closed session. He must be prepared to answer all qu’es­tions of law arising in closed session. This may include an explanation of the elements necessary to establish the offenses charged, what lesser offenses, if any, are included in the offenses charged, and the possible find­ings the court may make by way of. exceptions and substitutions. He should be prepared to advise the court as to the maximum punishment for each offense with which accused is charged~ It may be desirable for him to write out in proper form the findings and sentence upon which the court has determined so that they will be correctly and accurately announced by the president.

81. JUNIOR MEMBER. The junior member, has the sam~ right and duty to participate in discussions in closed session and to vote as has any other member. Since he has an equal responsibility in determining the fate of the accused, he should decide in accordance with his own judgment and not be influenced by the higher rank of other members. To avoid such influence, AW 31 provides that, whenever the vote is oral (as it is on. interlocutory questions except challenges), the junior member shall vote first. When the vote is by secret written ballot (as it is on challenges, findings and sentences) the junior member distributes the ballots, collects them, opens and counts them before the president who checks and tabu­lates th.e vote. The junior member customarily acts as messenger for the court. When the court is prepared to open after having been in closed session, he summons the prosecution and the defense and other p-ersons who have been excluded.
CHAPTER 13
TRIAL PROCEDURE

82. GENERAL. The purpose of a trial is to present evidence to the court so that it may decide whether the accused did what he is charged with doing and, if it is found that he did, adjudge a proper sentence. The first stage of the trial consists of the assembling, organization and
-swearing of the court, reading the charges and determining,how the accused pleads to them. The second stage consists in the presentation of evidence against the accused by the prosecution, of evidence in his behalf by the defense and of arguments, if any, by both sides. The third stage consists in the deliberation and voting by the court on the findings and sentence, and the announcement by the court of such find­ings and sentence. The entire procedure of a trial is covered in detail in paragraphs 49 through 84, MeM. A step-by-step outline of the pro­cedure for trials before general courts martial is contained in appendix 1 of this manual. The present chapter does not discuss the entire course of procedure, but explains some of the more common incidents of a trial which are sometimes sources of difficulty or error. Most of the pro-‘ cedure discussed has reference to a trial by general or special court­martial. The procedure for trials by summary courts is dealt with in chapter 9, supra.
83.
PRELIMINARY MATTERS. At the date and hour set for trial, the mem­bers of the court assemble, together with the trial judge advocate, the defense counsel, and assistant trial judge advocate and defense counsel, if any. Unless a quorum of the court (i. e., five members of a general court-martial, three of a special) and the accused are present, the trial cannot proceed. The members are seated, with the president in the center, the law member on his immediate left, and other members alter­nately to the right and left according to rank. The figure below illus­trates the proper seating of a general court-martial and the arrangement of the courtroom (the figure being based on the court assembled for the trial of Private Bark, app. 2, infra.)

When the court has been properly seated and called to order, the name of the accused is announced and defense counsel introduced. The re­porter (if any) is sworn and the trial judge advocate announces the names of the members of the .court present, stating the names and rea­sons for the absence of any who are not present. The court is then ready to censider and dispose of challenges to any of the members.

84.
CHALLENGES. a. In general. A challenge is an objection to the right of a member to participate in the trial. There are two classes of chal­lenges.: (1) challenges for cause, and (2) peremptory challenges. A challenge for cause is an objection to a member on the ground that he is disqualified to participate for reasons stated to the court. Nine grounds for such disqualification are listed in paragraph 580, MOM. A peremptory challenge is an arbitrary objection to a member without giving any ground or reason. Both the prosecution and defense may make any number of challenges for cause, Each side, however, has only one peremptory challenge. Only members of general and special courts­martial may be challenged (par. 58b, MOM). Such objections may not be made to trial judge advocates, defense counsel, or summary court

2d Lt Wente; 1st Lt Smashey; Capt Woolley; Lt. Col Upchurch; Maj Hawkins, 1st Lt. Van Kleek; 1st Lt Stalk
officers. .
b. Disclosing grounds of chailenge. After announcing the names of the members present, the trial judge advocate must state any ground for
,77
challenge which he believes exists and· will call upon every member to
make similar disclosure with respect to any grounds of challenge against
the member himself or any other member (par. 57a, MCM). The pur­
pose of this disclosure is to insure that all possible grounds fordisquali­
fication will be known so that proper action can be taken to excuse or
challenge any disqualified member. If it appears from the facts thus
disclosed that’ a member falls within the first five classes enumerated in
paragraph 58e, MCM, for example, that he is not a c9mmissioned officer,
or was not appointed On the court, or is the accuser, or will be a witness
for the prosecution, his continued presence on the court will make the
entire proceedings void. 1£, therefore, there is no dispute as to thQse
facts, he must be excused at once by the president without requiring a
challenge. If any other of the nine grounds for disqualification are
revealed, for example, that a member was the investigating officer in
the case, or had formed a definite opinion that the accused was guilty,
or was a brother of the accused, no action will be taken until that member
is challenged.
c. Presenting challenges. After disclosure of all possible disqualifying facts, the trial judge advocate will proceed to state any challenges for cause that he has. Although there is no limit to the number of challenges for cause he may make, only one may be presented at a time. When all his challenges have been presented and disposed of by the court~ including his one peremptory challenge, if made (£, infra), the defense will be. afforded an opportunity to present its challenges (par. 58f, MCM). In challenging a member for cause, the reason for the challenge must be stated. Thus, “The prosecution challenges Captain Ritter on the ground that he is decidedly friendly to the accused,” or -“The defense
-challenges     Major Sikes on the ground that he has express-eel a positive opinion as to the guilt of the accused,” would be a proper statement of a challenge.
d. Disposition of challenges for cause. When a challenge ,has be-en made, it becomes the duty of the court to determine whether it should be sustained or not sustained. The party making the assertion that a .mem­bel’ is disqualified has the burden of proving it in case the facts are dis­puted (par. 58f, :M:CM). When a member is challenged for cause,the president usually asks him what he has to say about the matter and the member may make a statement without being sworn. The challenging side may then withdraw its challenge if the explanation is satisfactory, or it may be willing to submit the matter on the ~asis of the member’s statement. Hno satisfactory statement is made, it may offer evidence to support the challenge and may even examine the challenged member under oath. (For form of oath, see par. 95, MCM, and app. 1, p. 146, infra). The accused and other witnesses, including members of the court, may tes­tify on that issue. The opposing.side may also introduce evidence and both sides may offer argument, creating literally a “trial within a trial.”
After all matters to be considered on the issues have been presented to
the court, it must proceed to determine whether the challenge should be
sustained. Although challenges for cause are interlocutory questions
(par. 7ge, supra), they are not ruled upon by the president or law member,
as are other such questions, but by the court itself in closed session and
by secret written ballot (AW 31; par. 58!, MCM). If, however, there is
no doubt that aU members of the court would vote unanimously to sustain
the challenge were the matter submitted to them i~ is unnecessary to go
through the formality of voting. In such case, the president may excuse
the challenged member, unless some objection is raised by the court or
counsel (par. 58!, MCM). If, for example, a member who was challenged
on the ground that he was decidedly hostile to the accused stated that he
was convinced that the accused was a worthless soldier and that the service
would be much better off without him, there would be no necessity of
putting the challenge toa vote since it would doubtless be unanimously
sustained. Except in such cases, the court must be closed and vote on the
challenge.
e.
Voting. When the coort is closed to deliberate on the challenge, the challenged member must withdraw. Deliberation in closed session may properly include full and free discussion, after which the junior member will distribute and collect the ballots. The vote should be “sustained” or “not sustained.” The junior member will count the votes and the president will check them and announce the numerical result to the court (AW 31). A challenge is nQLS!J.stained unless a majority of the members present vote to sustain it. [ The court will r.eopen, the chal­lenged member will resume his seat and the president will announce whether the challenge is sustained or not sustained. If sustained, the challenged member will be excused and withdraw. ­

f.
Peremptory challenges. Normally each side exercises its peremptory challenge, if it desires to use it, after its challenges for cause have been disposed of, although it may challenge peremptorily before it challenges for cause, or during challenges for cause. Such a challenge cannot be made after the accused has been arraigned, except as to a new member detailed after the beginning of the triaL Any member of the court may be challenged peremptorily except the law member (AW 18; par. 58d, MCM) . No ground or reason for such a challenge need exist. It is simply an arbitrary right to remove a member from the court. When peremptorily challenged, the member must be excused at once by the president. Only one peremptory challenge may be exercised by each side,

i.
e., the prosecution and the defense (AW 18). Two Or more joint defend­ants have only one such challenge between them (par. 58d, MCM). How” ever, each defendant in a common trial may exercise one peremptory challenge.

g.
Action after challenges. After all challenges have been disposed of, the court will be rearranged, if that has become necessary because one or

more members were excused upon challenge; The court will then 00 sworn (AW 19; par. 61, MOM), and is then ready to proceed with the charges.
85.
ARRAIGNMENT AND CONTINUANCES. The trial judge advocatewill read the charges and specifications, including the signature of the accuser, and then ask the accused how he pleads to each specification and charge (par. 62, MOM). The accused is thereby arraigned. The proper time for making motions and special pleas is after arraignment. Thus, if a motion for a continuance is made at the start of the case, the court should normally defer action on the motion until after the accused has been arraigned (par. 520, MOM). The right to prepare his defense is a funda­mental right to which every accused is entitled. Ifreasonable caUSe is shown, an application to have the proceedings continued should be granted after arraignment (par, 52a, MOM). The grounds for continu­ance are set forth in paragraph 52b, MOM. Whether the request for a continuance is reasonable is a question of judgment depending on the facts and circumstances in each particular case. Occasion for granting a continuance may also arise later in the course of trial as, :lior example, where a specification is later amended, or where an expected witness is suddenly unable to appear.

86.
PLEAS. a. General. After arraignment the accused will plead, i. e., make his answer to the charges, usually through the defense counsel, rather than by stating them himself. The order usually followed in case of several charges and specifications, is to plead to the first, second, etc., specification to the first charge, then to the first· charge, and so on with tlie rest. (See apps. 1, pp. 148-149, and 2, p. 203, infra.) He may at once plead “guilty” or “not guilty” or, he may, by way of special plea or motion, raise objections to being tried at all, on aU or some of the specifications and charges, or he may -remain silent. He may make special pleas to some specifications and charges and plead “guilty” or “not guilty” to the others.

b.
Special pleas. A special plea is an objection to trial before the court on all or some ofthe charges or specifications on the ground, for example, that the court has no jurisdiction, or that the specification or charge is defective, or that trial is completely barred by the statute of limitations or by former trial for the same offense. Special pleas are discussed in paragraphs 64 through 69, MOM. Where the accused has rnadea special plea to a particular specification or charge, that plea must be disposed of before the accused is required te plead to the merits of the case. Thus, if there were a single specification and charge alleging absence without leave and the accused pleaded the statute of limitations in bar of trial,

i.
e., contended that he could not be tried for that offense because it was committed more than 2 years. before he was arraigned (AW 39), the court could not proceed to the trial until the plea was disposed of. . If the plea were overruled, then the accused would be required to plead

further. If the plea were sustained, the trial could not proceed. The court would adjourn and the record ,of trial up to that point would be prepared and forwarded to the reviewing authority. If, however, there were two or more offenses and a special plea was sustained to one, the trial would proceed as to the charge or charges remaining~ and at the conclusion of the trial the entire record would be forwarded to the reviewing authority. The sustaining of a special plea does not, of course, mean that the accused has been found not guilty. If the review­ing authority disagrees with the court’s ruling, he may r~turn the record of trial to the court by indorsement or letter with directions to recon­vene, overrule the plea, and proceed with the trial on the merits. A ruling on a special plea is an interlocutory question which ~he law mem­ber or president rules on subject to the objection of any member. (See pars. 7ge and 80c, supra.)
c. Pleas to the merits. If the accused has no special pleas, or if any special pleas he makes are overruled, he must answer to the specification and charge by pleading “guilty” or “not guilty,” or guilty in part but not guilty of the rest (as, for example, in a trial on’ charges of desertion~ by pleading guilty of absence without leave but not guilty of desertion). If he remains silent or refuses to plead, the court will proceed as if he had pleaded not guilty (par.’ 70, MCM).Although the defense counsel is under a duty to explain to the accused the meaning and effect of a plea 0£ guilty (par. 450, MCM), the court should, nevertheless, satisfy itself, when such a plea is made, that the accused does understand the consequences of pleading guilty. In case of. doubt the law member or president should make an appropriate explanation or statement to the accused. A form for such statement may be found in appendix 1, p. 149, mira. The same duty as to explanation exists if an accused pleads guilty to an offense lesser than, but included in the offense charged, such as a plea of guilty to absence without leave ona charge of desertion. If any
question arises as to whether accused intends to plead guilty or not guilty, or if he pleads guilty and then at any stage of the proceedings makes a statement, sworn or unsworn, inconsistent with his plea, the court should enter a plea of Ilot guilty. Thus, if accused pleads guilty to larceny, but claims that he was so drunk at the time he didn’t know what he was doing, his statement is inconsistent with his having had a specific intention to steaJ the property ‘which is necessary to establish larceny. Consequently the case should be treated as though a plea of n@t guilty had been entered.
87. OPENING STATEMENTS. After all preliminary objections, motions and special’ pleas have been disposed of, and the accused has pleaded “guilty” or “not guilty”to· all or some of the charges, the trial proper is ready to proceed. Before calling any witnesses, the trial judge advocate may make an opening statement, that is, a brief and clear statement of the issues in the case and of the testimony which is to be offered to prove
the charges (par.7M, MCM). Such a statement is not required, and in a minor caSe or one where the iss:lles are few and not complex, probably serves little purpose. In all cases of difficulty or importance, however, a simple concise statement renders the issues intelligible at the outset and enables the court to follow the testimony more readily. The statement must be factual, omitting all .argument and any reference to matter which will not be properly proved. For example, in the case of Private Bark (app. 2, infra) the trial judge advocate might state: “The prosecu­tion will show l!hat on the morning of 28 September, the accused refused to go out on the drill field and drill when ordered to do so by his command­ing officer, Lieutenant Loganby, saying that he was sick of the Army and would not do any more work; that he was at once placed in confinement in the post stockade by order of Lieutenant Loganby; that on· the afternoon of that day, he escaped from confinement. The prose­cution will further show that he remained absent without leave until the 26th of November when he was arrested in Charleston, South Caro­lina, by Sergeant Sellins, a military policeman. Through the testimony of Sergeant Sellins, we shall show that the accused stated at the time he was arrested that he wasn’t going back to the Army.” The d~fense counsel may also make an opening statement, usually after the prosecu­tion has concluded its case and before any defense witnesses are called (par. 75a, MCM).
88. INTRODUCTION OF EVIDENCE AND EXAMINATION OF WITNESSES.
CI.
In general. After his opening statement, if any, the trial judge advo­cate will proceed to call and examine his witnesses. If the accused pleads guilty, he can be convicted on the basis of his plea without any evidence being presented. However, even where there is a plea of guilty, the trial judge advocate should present some evidence to the court on all the elements of· the offense, although, of course, since there is no dispute, he need not prove the case in the same detail and with the same completeness as if the accused had pleaded not guilty.

b.
Calling and qualifying of witnesses. Although court-martial pro­ceedings are usually open to the publio (par. 4ge, MCM), witnesses should be excluded from the court room until called to testify (par. 121, MCM). The assistant trial judge advocate will ordinarily summon into the court room witnesses for both prosecution and defense. Ifthe witness is in the military service he will proceed to the witness chair, salute the president, and raise his right hand while the trial judge advocate, or his assistant, administers the oath (AW 19), after which he is seated. The trial judge advocate asks all witnesses, for the defense as well as for the p!”osecution, the preliminary question as to their identity and as to whether they know the accused and who he is. (See app. 1, p. 150, infra.) Ifthe witness is a prosecution witness, the trial judge advocate will proceed to examine him; if a witness for the defense, the defense counsel will assume the direct examinations. At the conclusion of his testimony,

-the witness will be excused by the president, wh0m he again salutes before leaving. If the accused testifies, the prosecution will ask him his name, grade, organization and station, and whether he is the accused, after which the defense assumesthe direct examination.
c. Order of testimony. The trial judge advocate should be’allowed
to introduce his evidence in such order as he thinks fit (par. 41b, MCM), ·although he should endeavor to present the case in a logical fashion. ·The order ofexamining a witness is direct examination by the party call­·ing him, crmis-exainination by the other side, redirect examination, recross­
examination, and then questions by the court (par. ·121a, MCM).
d. Direct examination. The object of the direct examination is to pre­.sent to the court by witnesses a word picture of facts proving 01′ tending ·to prove the contentions of the side calling them. Leading questions, ‘1. e., questions which suggest the answer, are not ordinarily permitted on ‘direct examination (par: 1210, MCM); Careful preparation will Mable
courisel to know what questions to ask and how to ask them to avoid
objectIons. It may be well for the beginner to write out all questions he ·proposes to ask on direct examination, and even counsel with experience ··shotiIdmake a summllryofthe evidence to prove by each witness.
.e. Cross;.examination. For a discussion of the rules of cross-examina­tion, see paragraph 121b, MCM. Cross-examination should not be under­taken at all unless it is believed that some advantage can be gained
,thereby. If an adverse witness tells a straightforward, consistent story ‘on direct examination and no reason appears to doubt his credibility, nothing can be gained· by ctoss-examination. Repetition will only serve to strengthen the witness in the eyes of the court, and matter overlooked on direct examination and adverse to the cross-examiner may often be brought olit. If, however, the witness contradicts himsel£or other wit­nesses, appears uncertain in his knowledge, or may be impeached by a prior incon,sistent statement or a bad general reputation for truth and
‘verad(y, then cross-examination is indicated. Leading questions are, of course, proper on cross-examination.
f. Examination by court. After examination by counsel fotboth sides has been completed, the trial judge advocate will ask if there are any questions by the court (par. 121b, MCM). The law member, or presi­
.dent, if there be none, should not hesitate to stop improper inquiry even without objection by counsel as the parties are often disinclined to object to questions asked by members of the court (par. “l5a, MCM, and app. 2, thismanual).
g. Objections. Counsel should make timely obiections to the admission of any incompetent or otherwise improper evidence that might be injuri­ous to theirside of the case. An objection should be specific, stating the ~particular ground upon which it is made. Both defense counsel and trial judge advocate have a duty to assist the court in keeping the trial free from error. They should not,however, interrupt the procee’dings with frequent objections, even though technically sound, on trivial points
632260′–45—-7
not damaging to their side,asthis only serves to delay the trial and may antagonize the court~
89. MOTION FOR FINDINGS OF NOT GUILTY. After the prosecution has presented all its evidence and rested, the defense may make a motion for findings of not guilty as to any offense charged. This motion is in effect a request to the court to acquit the accused because the prosecution has failed to prove all the necessary elements of the offense. After the mo­tion has been made and both sides have been afforded the opportunity to argue, the court must determine .whether there is some substantial
. evidence of every element of the offense.. So long as there is some evi­.dence of each element, even though contradicted by stronger evidence, the motion should be denied. Moreover, even though the evidence is insuf­ficient to establish the offense charged, if it proves any lesser included offense, the motion should be denied. If, for example, in a trial for desertion the prosecution established absence without leave but failed to offer any evidence of an intent to desert, a motion for findings of not guilty of desertion should not be granted because the Jes~er;included offense of absence without leave has. been established. A motion for findings of not guilty is .an interlocutory question ruled on initially by the law member Or president subject to objection by any other member. (See pars. 7ge, 80c, supra.) If the motion is granted, the court at once announces that the accused is acquitted and the trial is concluded. Although the motion should be made when it appears that there is no available evidence to prove the prosecution’s case, it often serves only to call attention to the prosecution’s neglect to present evidence which can be obtained, in which event the court may properly permit or require the trial judge advocate to reopen the case and produce such available evidence(par.l1d, MCM).
90. ARGUMENTS. Both the prosecution and the defense may make argu­ments to the court. After all evidence is in and both sides have rested, the prosecution has the right to open and, if argument for the defense is made, to close (par. 77, MCM). If, however, the prosecution waives opening argument, the defense too may waive argument, in which event·the prosecution will be precluded from arguing. A well pre­sented closing argument will aid the court in its deliberations, partic­ularlyif the charges are numerous or complex, or the evidence has been difficult to follow. A closing argument should be a clear sum­mation of the testimony indicating in what respects it favors that side. Oratory” strong protestations of the guilt or innocence of ac­cused, and tricks of showmanship are generally ineffective before courts­martial and should be avoided. As in all phases of presenting the case, both the .trial judge advocate and defense counsel should conduct themselves with the courtesy, dignity, and fo~thrightnessnecessaryto the proper performance of their hnportant military duties. After argu­
ments are concluded, the court will be closed to deliberate on its findings. .(See ch. 15, infra.)
91. JOINT AND COMMON TRIALS. a. Joint trials. Where twool’more persons join in the commission oia crime or offense, they maybe charged jointly. (See par. 24d, supra.) Persons so charged are jointly tried, that is, there is only one trial and one record of the proceedings. After the arraignment one or more of the joint accused may make a motion to sever, that is, to be tried separately. Among the principal grounds’ for such a motion are the fact that the defenses of the various accused are antagonistic to one another, or that one of the accused desires to call another of the accused as a witness. If the court·grants the motion, it will decide which of the accused will first be tried and amend the specification so as to eliminate the reference to the party who is not to be tried at that time (par. 71b, MCM). If the motion is not granted or if ·all accused do not move to sever, the trial proceeds as a joint trial. Each of the accused must in general be accorded every right and privilege he would have had if he had been tried separately (par. 490, MCM). How­ever, the defense has only one ·peremptory challenge, no matter how many joint accused there may be. Both court and counsel must be careful to note evidence which is admissible against only one or some joint accused, and consider it only as against such of the accused as it applies to. If, :for example, a written confession obtained from one accused is offered
in evidence, the trial judge advocate should state that it is offered against that accused only, and the court should be cautioned against considering it against any coaccused. So, too, out-of-court statements of one cocon­spirator after the common design has terminated (par. 1140, MCM) and unsworn statements at the trial, which are not evidence (par. 76, MCM) , are only admissible against the accused who made them. However, one joint accused may always testify at the trial against another (par. 1140, MCM). If the defense counsel finds that the defenses of joint accused whom he has been detailed to defend are inconsistent, e. g.,. if each attempts to cast the blame on the other, he should make application to the reviewing authority to have each represented by separate defense counsel. Separate findings and sentences must be made as to each accused. (See pars. lOB, 115, infra.)
b. Common trials. Two or more accused may be jointly tried only if they are charged jointly. They can be so .charged only if the offense is one which more than one person can commit. -(See par. 24d, supra.) Two or more persons may each commit an offense which cannot be considered joint, but, if committed at the same time and place, the evidence and witnesses may be the same as to each. In such circum­stances, the separate charges against the several accused may be tried together at a common trial. . This may be done, however, only if the appointing authority so directs and no one of the accused objects. The object of having a cOmIDon trial is one of convenience, to avoid having the same evidence presented at several trials and the preparation of several separate _records. Since the charges are separate, eacp. accused is entitled to all the rights he would have had if the charges had not been combined, including the right to a peremptory challenge, the situa­tion differing in this respect from that of a joint trial. Separate findings and sentences must, of course, be made as to each accused. Although a single record of trial is prepared, separate court-martial orders are issued as to each of the accused. (See par. 144n, infra.)
CHAPTER 14
EVIDENCE

92. NATURE AND PURPOSE OF RULES OF EVIDENCE. Like civil courts, courts-martial are required to determine the cases before them “according to the evidence” (AW 19), that is, solely on the basis of matters intro-. duced before them at the trial and facts of which the court may take judicial notice. Every bit of this evidence must be presented in open
.court. If courts were allowed to decide on information they obtained from other sources, their decisions might be based on mere rumor, opinion or something equally untrustworthy. The information which can be introduced before a court upon which to base its decision and the method of presenting it are governed by the rules of evidence. These rules are based on common sense and long experience, and furnish a safe and efficient method of ascertaining the truth. The rules of evidence which must be followed by courts-martial are contained in chapter XXV, MOM. A decision of a court-martial based on facts not established by proper evidence cannot be upheld. Some knowledge of the rules of evidence must, therefore, be possessed by every trial judge advocate, defense counsel and summary court officer. While those untrained in law are not ex­pected to master all the rules, they should know the fundamental prin­ciples which apply to the particular caiile being tried. Full instruction in the substantive law and rules of evidence is not within the scope of this manual. This chapter deals with only some of the rules more commonly encountered in trials. Because of this limitation reference must be had to the Manual for Courts-Martial for further study of other rules of
evidence.
93. DIRECT AND CIRCUMSTANTIAL EVIDENCE. Facts other than those of which the court may take judicial notice may be proved either by direct evidence or by circumstantial evidence. Statements of fact within the personal knowledge of the witness, or contained in a document which is admissible in evidence constitute direct evidence. Thus.testimony of a witness that he saw the accused take property from the foot locker of another soldier would be dir!3ct evidence of the taking. The taking might, however, be proved notby direct evidence of a witness who saw the taking, but by indirect or circumstantial evidence. Thus, if a witness testified
that the stolen property was found in the.accused’s ·locker after.the ac­cused denied it was there, the court might infer, from the accused’s possession and concealment of the property, the fact that he had taken it. Where the offense in question requires proof of a specific intention or knowledge or understanding on the part of the accused, it is almost always necessary to establish such intention, knowledge, or understanding, .by indirect evidence. On a charge of desertion, for example, it is neces­sary to prove that the accused intended to remain away permanentlyor to avoid hazardous duty or shirk important service. Such intent is not a fact to which a witness, other than the accused, can testify, and testimony of such intent would be merely an opinion or conclusion of the witness, which he is not permitted to give. (See par. 112b, MCM.) The inten­
. tion could be proved only by evidence of things the accused did or said from which the court could infer his intention. That his unexplained ab­sence continued for several months or more, or that he was appre~ hended while dressed in civilian clothes, or that he had traveled a great distance from his station before being returned to military control, or that he had stolen articles from his barracks mates shortly before leaving; though not directly proving his intention, constitute circumstances froni which ‘th~court may in the light of other evidence and on the basis of its own· general experience and observation, infer the existence of an intent not to return to his organization. The same principle applies to proof of knowledge or understanding, as for example in cases of willful disobedience of lawful orders of commissioned or noncommissioned offi­cers (AW 64, 65), where it must be shown that the accused knew that the order was given by a superior. (See par. 1Mb, MCM.) No witness can testify that the accused understood the order, or knew it was given by a superior, or that his disobedience was “willful.” Those are conclusions which the court itself may draw from evidence as to the circumstances under which the order was given and what the accused said and did thereafter.
94. HEARSAY RULE. a. Definition. Any witness other than an expert witness is allowed to testify only to what he himself did or what he observed with his own senses. He can testify, for example, that he ordered the accused placed in confinement, that he saw the accused climb out a window, that he heard shots being fired. He cannot testify to what someone else told him, as, for example, that the sergeant of the guard told him that the accused was placed in confinement, that the accused climbed out the window and that shots were fired at him. Such a testimony would be “hearsay.” The “hearsay” rule means simply that a fact cannot be proved by having a witness testify as to statements made by someone else or by introducing in evidence It book, document; report, or other paper in which statements are made. Thus, if a soldier were being tried for larceny of property from a footlocker, testimony
of a witness that the accused’s barracks mate said that he saw the ace. cused take the property from the footlocker is no ‘evidence that the accused took it. In such case the witness would not· bel testifying to facts within his own’ knowledge, but merely as to what someone had told him. The fact that the statement was in writing would not change the result. If the accused’s barracks mate had told an investigating officer during the course of an official investigation that the accused took the property, and the statement was typed, signed and sworn to,the written statement could not be admitted. The best method of proving the fact would be to call as a witness the person who made the statement and let him testify in court from his own knowledge that he saw the accused take the property. Hearsay is literally no evidence at all. Even though hearsay evidence is admitted without objection,it cannot be con­sidered by. the court, and if the only evidence to support a finding is hearsay, the finding cannot be upheld. The hearsay rule does not mean a witness can never testify as to what he heard others say. Often one of the issues in a case is whether a statement was made, not whether the facts stated are true. If a soldier is charged with willfuldiso~ bedience of·the lawful order of a superior officer, for example, anyone who heard the order given by the officer can testify to what he heard the officer say. The issue to be decided is whether or not the order was given, and anyone who heard it given would be testifying as to a fact
Of which he had personal knowledge. Thus there would be no question of hearsay. Similarly, if a soldier were being tried for disrespect toward an officer by calling him incompetent, anyone within hearing at the time the remark was made could testify that he heard accused call the officer incompetent. .The purpose of such testimony would not be to prove that the officer was incompetent, but only to show that the accused did in fact make that disrespectful statement. Such testimony is not, therefore, hearsay.
b. Exceptions to the hearsay rule. The hearsay rule is subject to a number of well-recognized exceptions. These are discussed in paragraphs 114 through 119, MOM. A few of the more important exceptions are con­sidered in the paragraphs below.
95. ADMISSIONS AND CONFESSIONS-IN GENERAL. As stated above, the hearsay rule prohibits proof of a fact by having a witness testify to what someone else told him or by producing, a written statement made by’ someone not in court. One of the principal exceptions to the rule is that which permits evidence as to’ admissions or confessions made prior to the trial by the accused himself. A witness may testify as to what the accused said, Or a written statement made by the accused may be introduced in evidence. An admission is a statement made by the accused which connects him with the offense but falls short of a full acknowledgment of guilt. A confession is a full acknowledgment of
guilt 0rof substantially all: the elements of the offense. Thus, a state­ment by a soldier that he “held up A and took his wallet” or that he “went over the hill to get out of the Army” are, respectively, confessions of robbery (AW 93) and -desertion (AW 58), as they both acknowledge all, elements of each offense~On the’ other .hand .statements that he “stuck a gun in his ribs but ran away when he saw the cops coming” or that he “took off to see his girl but was coming back in a week” are only admiSsions since they do not acknowledge all elements of the offenses of robbery and desertion, the first not admitting the actual taking, a neces­sary element of robbery, and the second expressly denying an intent to remain away permanently,a necessary element of desertion. -The dif­ferent rules as to the admissibility in’ evidence of admissions and of ~onfessions are discussed below. It must be remembered that these rules apply only to admissions or confessions made by an accused, outside of
‘court. An accused may completely acknowledge his guilt in court by pleading guilty, or in his testimony as awitn~ss,or in an unsworn state­·ment. Or his testimony or unsworn statement may contain damaging admissions. In such circumstances there is no question of hearsay at alL .The rules limiting the admissibility of evidence as to confessions by an accused have nothing to do with his statements made before the court.
:96. PROOF OF CONFESSIONS AND ADMISSIONS. a~ A confession must be voluntary. Before a confession can be admitted it must be shown th.at it was entirely volwntary on the part of the accused. A confession is not voluntary if· the accused was induced to_ma~e it, or mll,terially influenced, by hope of obtainingsome benefit, or by fear of punishment or injury, inspired by some person who had the authority, or whom the accused reasonably believed .had authority,to do what. he promised or threatened; Thus, if’ an accused made a confession because of a promise that if he confessed he would be released fro~ confinement at once, or because of a threat that he would be beaten if he did I\ot confess, the confession is not voluntary if the promise. or threat were made by a person whom the accused reasonably believed could carry it out. In every case, therefore, before offering evidence of the confession the trial judge advocate .shouldshowall surrounding circumstances, including what was said by the person to whom the accused confessed. If the circumstances under which the confession was made raise any doubt as to its voluntary nature, the court should inquire further into the facts, permitting the defense to offer any evidence it may have on the point, before admitting the confession. The circumstanoes undoc which a confession was made may not suggest the need for any further inquiry, as for example, if a private confessed to a fellow private. In such cases the confession may be regarded as voluntary. Where, however, a confes~ sion is made to a military superior, it should be subjected to close scrutiny
and should not be admitteclunless clearly shown to be voluntary, espe­cially when the soldier confessing is ignorant or inexperienced and is being held in confinement. The fact that the accused was advised by his superior before making the confession that he need not make any statement at all, but that if he did it might be used against him, tends to show that the confession was voluntary,but is not conclusive on the point. Even a slight assurance of benefit held out by a military superior to an accused under charges is ground for rejecting the confession. Thus, if a company commander secures a confession from an enlisted man of his organization by stating that “matters would be easier for him” or “as easy as possible” if he confessed, such confession should not be regarded as voluntary. A similar result might follow as to confessions made by soldiers, upon assurances held out, or intimidation resorted to, by noncommissioned officers depending upon the circumstances. In view of the peculiar conditions under which accused persons are often placed when making confessions, and of the probability of error or exaggeration on the part of the witnesses who relate them, when oral, evidence of confessions is in general to be received with caution. Where, however, a confession is explicit and deliberate as well as voluntary, and is proved by a witness by whom it has not been misunderstood and is not mis­represented, it is one of the strongest forms of proof (par. 114a, MOM).
b. There must be other evidence of the offense. An accused cannot be convicted solely upon evidence of a confession made by him outside 6f court. The prosecution is required to furnish evidence, wholly apart from the confession, that the crime charged was probably committed by someone, so that there will be some corroboration of the confession. This is known as evidence of the corpus delicti, i. e., body of the crime. Thus, in a trial for murder, it would be necessary to establish that the partic­ular person whom the accused was charged with murdering had died under circumstances indicating that he was unlawfully killed,’ for ex­ample,that he was found delld from poisoning or a bullet·wo”Und. If that were shown, a confession by the accused that he had committed the murder could be considered.’ Ordinarily the prosecution should be re­quired to prove the corpus delicti before it offers evidence of a confession. The court may, however, permit the confession to be offered first on the assurance of the trial judge advocate that he will prove the corpus delicti later. If he does not; the confession must be stricken out and disregarded by the court. This independent evidence need not be suf­
ficient in itself to satisfy the court beyond a reasonable doubt that the accused committed the crime, nor even ~over every element of the offense. All that is required is some evidence that.the crime in question was probably committed by someone. Thus in a case of larceny, evidence that property was missing under circumstances indicating that it was stolen, e. g., that a soldier’s wall locker was pried open and that clothing was taken therefrom, would be sufficient. Or, in a case of desertion, evidence that accused had absented himself without leave, e.g., a duly authenticated extract copy of his company morning report, would estab· lish the corpus delicti.
c. Procedure. After evidence of the corpus delioti has been introduced, the prosecution .will then be ready to offer evidence of the confession itself. The confession may have been oral orin writing.
(1) Written oonfessions. A witness who was present at the ,time the alleged confession was signed or written should be called to the stand; The trial judge advocate should·· produce the confession and have it marked as “Prosecution’s Exhibit 1 [or the next number in order] for Identification.” It should be shown to counsel for accused and then handed to the witness. The witness should be asked if he can identify the statement, including when and where it was taken, who was present at the time, how it was prepared, e. g., taken down in shorthand and transcribed or written out in longhand, and whether or not he saw the accused sign it, write it in his own hand or otherwise adopt it ,as his statement. The witness win be asked what, if any, warning was given to the accused before he made or signed the statement. At this point the defense, if it so desires, may cross-examine the witness and introduce any evidence of its own on the issue of whether the confession was vol­untarily made. The trial judge advocate should then formally offer the confession into evidence. The entire confession must be offered, as the prosecution has no right to withhold any portion. Ifthe court is satis­fied that it is voluntary, the confession will be admitted and marked as an exhibit. The entire confession should then be read to the court by the trial judge advocate, and will ultimately be attached to the record as an exhibit. . (See app. 3, p. 233, infra,)
(2)Oraloonfessions.
The person to whom the confession was made, or someone present at the time, will be called and sworn as a witness. The trial judge advocate will ask the witness if he had, or was present at, a conversation with the accused concerning the particular offense or offenses, and if so where and when it took place and who was present at the time. In view of the discussion in paragraph 96a it is advisable that the witness be asked what, if any, warning was given to accused before he made the statement, after which the defense will be permitted to cross-examine or introduce its own evidence on the question of whether the confession was v0luntary. The witness will then be asked to relate what the accused said. .

d.
Admissions against interest. Admissions or declarations against interest (par. 95, supra), unlike confessions, are admissible in evidence without any affirmative showing that they were voluntarily made. For example, if a military police officer arrested an enlisted man on suspicion that the latter had participated in a bank robbery, a statement by the soldier that he had been in the vicinity of the bank at about the time in question would constitute an admission against interest and could

be introduced in evidence despite the failure of the officer to warn him of· his rights. Should it appear, however, that the admission was pro~ cured by means which may have been of such character as to have caused the accused to make a false statement, such as, for example, the use of “third degree” measures, the court should exclude or disregard all evi­dence of the statement.
97. OFFICIAL WRITINGS. a. Admissibility in general. As already indi~ cated (par. 94, supra), a written statement is ordinarily not admissible as proof of the facts stated in it since it is a statement lIl;ade by someone outside of court, i. e., hearsay. This is true even if the statement is an official. report. Thus, the written report of an investigating officer as to what a witness said at the investigation, or a written statement or affidavit by a military policeman that the accused was apprehended, would be inadmissible. The witness at the investigation or the military policeman must be called to testify in person. An important exception to this rule, however, is that which permits the use in evidence of officia.l statements in writing made by an officer or other person wlw had the duty to know and toreeord the fact or event stated (par. 117a, MOM). The most common illustration of this rule is the admission of entries
/     ina morning report. The company or other similar unit commander is charged -by law with the duty to know and to make a permanent record in his company morning report of certain facts and events taking place within his organization. (See AR345-400, 3 January 1945.) Since he must know and record the status of all men in his organization,an entry in a morning report of “Dy to AWOL,” for example, is evidence of absence without leave. It is unnecessary to call the company commander.
. himself     to testify as a witn~ss. The entry in the morning report is enough. This exception, it must be remembered, applies only to the original record of facts which the person making the record had-a duty to know and to record. An investigating officer does not have a duty to know the facts to which a witness at an investigation testifies, whereas a company commander does have a duty to know the status of enlisted men in the company. The report of the investigation is, therefore, in­admissible, whereas the morning report is admissible. Other unit records in which facts must be originally recorded, such as the record of indi­vidual clothing and equipment, a payroll, or a guard report, are ad­missible on the same principle. For instance, entries in a guard report relating to confinement or escape from confinement would be admissible to establish those facts, without calling as a witness the prison officer or other person making the entries. (See app. 2, p. 215, infra.)
b. Entries obviously not based on personal knowledge. One qualifica­tion must be observed as to official records {)f facts which -the recording officer has a duty to know and to record. If it appears from the record that the officer making the entry obviously did not have personal
lmowledge of the fact recorded, the entry is’ treated as hearsay. Thus, a company commander is required to enter in the morning report facts affecting, the status of men in the organization, but it maybe obvious that he cannot have personal knowledge of those facts.’ For example, suppose a soldier stationed at Camp A was ordered to proceed on detached ,service to Camp B a considerable distance away. While en route to Camp B he absented himself without leave and failed to arrive at Camp B at the designated time; At his trial for absence without leave the trial judge advocate offered into evidence an extract of the company morning report made at Camp A ,reciting absence without leave of accused while en route to Camp B. It is obvious that the entry in question was not based on the personal knowledge of the company com­manderat Camp A, as the alleged unauthorized absence did not originate at the station of his organization and the entry must have been based on information obtained from outside sources. A proper method of proving absence without leave in such case would be to offer into evidence a duly authenticated extract of the morning report of the company at Camp A reciting the transfer from Camp A to detached service at Camp B, an authenticated copy of the orders transferring accused from Camp A to Camp B, and a duly authenticated extract copy of the morning report of the organization to which accused was assigned at Camp B, showing his absence without leave by failing to arrive at the point of
‘clestinationat the required time. The latter entry, i. e., that accused failed to report at the organization at the time ordered, would be within the personal knowledge of that organization commander. Another com­mon unauthorized use of a hearsay entry in a morning report is the attempt to prove termination of absence without leave or desertion at a place or post other than that where the particular unit is stationed. If a company is located at Camp A, an entry in its morning rep’ort that an absentee of that company surrendered to or was ‘apprehe:qded by either the civil authorities or the military authorities at a location other than at Camp A would obviously not be within the personal knowledge of the absentee’s company commander at Camp A and would be no evidence at all ofthe termination of the absence. This does not mean that termi­nation of absence cannot, in a proper case, be shown by morning report entries. If the absentee surrenders to his own organization and is restored to duty, or is apprehended and returned to it under guard, respective entries in his organization morning report of “AWOL to duty” or “AWOL to confinement, Post Guardhouse,” would be based on personal knowledge and admissible to show return to military control. (See, for example, app. 2, p. 214, infra.)
c. Service records. The principles applicable to unit records discussed in paragraph 97a, supra, do not -apply in general to service records., Entries made in these records are not ordinarily made as to’ facts which the recording officer himself has a duty to know, but are copies from other.
original records. Although, for example, all furloughs taken by a soldier are recorded in this service record, the entries therein are copies from the original furlough certificate and are thus secondary evidence, not the original evidence of the fact of the furlough. The entry in the service record could not be introduced into evidence, therefore, to establish that a soldier had taken a furlough, if proper objection was made that the entry was copied from other original sources (par. 117a, MCM). There are, however, two types of entries in service records which may properly be introduced into evidence at a trial. The first of these, an extract copy of a service record duly authenticated by the unit personnel officer and relating to evidence of previous convictions of accused, is both admissible and the usual method of proving previous convictions (par. 117a, MCM, and app. 2, this manual). And, secondly, the final indorsement on the service record is an original entry and commonly. used to establish the character of the discharge of an accused, i. e., honorable or dishonorable. (See par. 117a, MCM.)
d. Proof of official writings. The discussion in the subparagraphs above has dealt with the question whether the contents of a document can be considered as evidence of the facts stated therein. Before that question arises,however, the document itself must be properly proved. Themethod Qf proving writingsis considered in paragraph 98.
98. METHOD OF PROVING WRITINGS. a. In general. There are two general rules for proving the contents of a document or other writing:
(1)
the original document or writing must be produced and (2) there must be evidence to prove that the document or writing is what it purports to be. There are exceptions to these rules in the case of public documents or other official records. The general principles will first be discussed and then .the exceptions will be dealt with.

b.
Original writing must be produced. Generally when the contents of any written instrument are to be proved at a trial, the instrument itself must· be introduced. This is known as the “best evidence” rule. It for­bids proof of the contents of any writing by oral testimony or by a copy of the writing. H, for example, it is desired to prove admissions made by an accused in a post card mailed to another soldier, the latter is not permitted to testify as to what was contained in the card. The card itself must be introduced as the best evidence of what it contains. Like­wise the recipient of the card would not be permitted to make a copy of it and bring that to court as evidence, even though he would testify that the copy produced was an exact copy of the original. If, however, the original writing has been lost or destroyed or is otherwise not available, its contents may be proved by a copy or by the testimony of witnesses who have seen the writing (par. 116a, MCM). Whenever the contents of a document become material, such as a check in a forgery case, a pay voucher, ora written or signed confession of an accused, the original writing must

All documents received in evidence w-ill be attached to the record of trial when it is prepared. If, however, an original record or other document which should be returned to its source is received in evidence, the party introducing the record should request permission of the court to with­draw it and substitute a suitable copy certified as such by the trial judge advocate, so as to permit the return of the original (par. 75a; MCM).
99. IMPEACHMENT OF WITNESS. a. In. general. A fundamental prin­ciple of evidence is that the reputation of a witness as to trutli and veracity cannot be shown unlessit has been attacked. For example, after a witness testifies, his own side cannot “bolster” his testimony by offering evidence that his general reputation for truth and veracity in his com­munity, organization or station is good. The accused occupies no excep­tional status as a witness in this respect and his. testimony cannot be enhanced by evidence of his reputation for truth and veracity any more than that of any other witness., Once a witness testifies, however, the opposing side may attack his credibility. The methods of doing so are discussed in the subparagraphs below.
b. Methods of impeaching witnesses. The various methods of dimin­ishing the credibility of a witness are discussed in paragraph 124b, MCM. There are four methods of impeaching a witness: (1) By showing that the reputation of a witness for truth and veracity in his community is bad. His “community” includes his organization, station, or post. Such evidence must be limited to his reputation in the com­munity, and the personal opinion of a witness as to his character or veracity may not be shown. (2) By showing that the witness has been convicted of a crime which involves moral turpitude or which effects his credibility, as, for example, sodomy (involving moral turpitude) or making a false official statement (affecting credibility). Convictions for other offenses as, for example, a purely military offense such as desertion (AW 58) or willful disobedience (AW 64) are not admissible. Before a conviction may be proved, the witness must first be questioned with reference to it and given an opportunity of denying, admitting, or ex­plaining it. (3) By showing that the witness has previously made a statement inconsistent with his testimony in court. The inconsistent statement must relate to one of the issues in the case, not to a collateral or subordinate matter. For example, if a witness testified in a trial for robbery that he was in a drugstore drinking a lemonade when the’accused came in with a gun in his hand and held up the store, he could not be impeached by showing that before the trial he had stated that he was drinking an ice cream soda at the time the accused entered. He could be impeached, however, by showing that he had earlier stated that at no
time did he see the accused with a gun. (4) By showing that the wit­ness was prejudiced or biased for or against the accused, or was a friend or an enemy or related-to the accused, etc. Such facts with respect to his personal interest tend to diminish his credibility.
c. Evidence of reputation for truth and veracity where witness has been impeached. When the credibility of a witness has been assailed, the side which called the witness may meet the attack by evidence that his general reputation for truth and veracity was good. If, for example, the defense offers evidence to impeach the credibility of a prosecution witness by proof that his general reputation for truth and veracity in his organization was bad, or that he had made prior inconsistent statements, the prosecution may in rebuttal show that his general reputation for truth and veracity in his organization is good (par. 124b, MCM). But such rebuttal evidence is inadmissible unless his credibilify as a witness, rather than the truth or accuracy of his particular testimony, is assailed. Although statements made by a witness are flatly contradicted by other witnesses, his reputation for truth cannot be shown until his credibility has been assailed by some recognized method of impeachment discussed in paragraph 99b, supra. If, in every case where witnesses are in direct conflict, proof of their general character could be introduced, the true disputed issues of fact would be lost sight of in a mass of testimony sustaining or impeaching the various witnesses in the case. If, to prove a charge of drunkenness a prosecution witness, A, testifies that accused was staggering and had the odor of alcohol on his breath, and the defense thereafter calls a witness,
B, who testifies that accuse~ neither staggered nor smelled of liquor, the prosecution may not show that the general reputation of A for truth and veracity in his organization was good. The attack made by B was upon A’s particular testimony, not upon his character or reliability as a witness generally, But if the defense called witness C, who testified that A’s gen­eral reputation for truth and veracity was bad, the proposed prosecution testimony would be admissible.
d. Character of accused. It is a fundamental rule that the prosecu­tionmay not introduce evidence of the accused’s bad moral character or formal misdeeds in proof of the charges on which he is being tried (par. 112b, MCM) , since there would be a tendency to find him guilty simply because of his bad record. If, however, the accused testifies under oath as a witness, ‘his credibility is subject to being attacked like that of any other witness. If it is attacked, the defense may show that his reputation for truth and veracity is good, as it may in the case of other witnesses. If the prosecution does not attempt to impeach him, then the defense may not bolster his story by evidence of his reputation for truth. It must be remembered that the prosecution may not impeach his credibility unless he tesnmes as a witness. If, for example, he remained silent or made an unsworn statement only, his credibility would not be an issue and the prosecution could not attack it. Although the defense may not introduce evidence of the reputation of the accused for truth in order to enhance his credibility as a witness unless the prosecution attempts to impeach him, it may always offer evidence of his generaJ. good character and mili­tary record to show the probability that he was innocent. Whereas his
cjcj
632260°–45—-8
reputation for truth and veracity would be material only if he testified as a witness, evidence o£his good character, such as thatheisa good soldier, that ,he has had a prior honorable discharge,’would all indicate the un­likelihood that he had committed the offense charged. 1£ the defense introduces such evidence, the prosecution has the right to introduce evi­dence in rebuttal. It could, for· example, show by another of his former commanders that he was not a good soldier, or that he had at one time received a discharge other than honorable. It must be remembered that only the defense may offer evidence of the accused’s general good char­acter originally,and that the prosecutIon may introduce evidence on the point only by way of rebuttal.
100. PROOF OF VALUE OF PROPERTY. a. In general. In cases involving an offense against property, such as larceny, embezzlement, misappropri­ation, damage, loss, or wrongful disposition, it is necessary to prove that the property had some value in order to establish the offense. Moreover, in such cases the seriousness of the offense and the amount of punish­ment that can be imposed are determined by the value of the property in question. For example, larceny of a watch valued at less than $20 carries a maximum confinemen~ of 6 months in a guardhouse, whereas if the watch is shown to be of a value in excess of $50, confinement for 5 years in a penitentiary is authorized. The trial judge advocate must, therefQre, offer affirmative and competent evidence of the value of (\ach ~tem of property included in the charges.
b. Civilian property. The value to be proved is the “market value” of the property, that is what it is worth in the open market at the time of the offense. The court cannot determine the specific market vallIe of any property unless evidence is introduced to prove it, or unless there is a stipulation by both sides as to that value. (See par. 68b, supra, as to stipulations as to value.)’ Proper evidence of market value is the testi­mony of someone who, by virtue of his knowledge and experience, knows what that value is. 1£, for example, the article involved is a second hand watch, a dealer in second hand watches may testify as to his opinion of its value. When called as awitness, the dealer or other ex­pert should first be questioned as to his experience in dealing in articles of the kind involved so that he may qualify as an expert on the subject of their value, after which he will be shown the property, be permitted to examine it if he has not already done so, and then asked to give his opinion of its value at the time the alleged offense was committed. The owner of the property may not testify as to its value unless he can also qualify as an expert witness, nor may the owner be permitted to testify as to any special Or peculiar value the property may have for him. Neither the original cost of a second hand article, nor what it will cost to replace it is sufficient to prove its market value. Thus, if a soldier
were being tried for stealing a suit of clothes worth $30, the testimony of the owner that he paid $40 for.the suit 2 years ago, and that it is still worth that much to him as he could not replace it for $50, is not evidence of the “market value” of the suit. If, however, someone who dealt in second hand clothing and was familiar with its market value testified that the suit was worth $25 at the time of the offense,the court could find that the suit had a value of $25.
c.
Inference of some value from nature of property. Although a co’Urt­martial cannot find the specific value of property unless evidence of such value is produced, nevertheless where the character of the property clearly appears in evidence, for im:tance, if it is exhibited in court, the court, from its own experience, may. infer that the property has some value (par. 149g, MOM). Where the prosecution, for example, fails to prove the specific value of a suit of clothes, the court could, despite lack of direct proof, infer that the clothes were of some value. The value inferred in such cases is nearly always “some value less than $20.”

d.
Value of government issue property. When Government articles issued or used in the military service are involved, as, for example,an Army issue overcoat in serviceable condition, their value is established by reference to a published Government price list (e. g., AR 30-3000, 16 Oct. 1944). The proper procedure is to identify theproperty as of a type mentioned in a published Army price list, offer evidence of its serviceable condition, then show the price set out in· the list. The court may take judicial notice of the published price (par. 125, MOM), that is, it may recognize the existence of the price without formal proof of it. The court should be asked to take judiCial notice of the price and the published list should be called to its attention or submitted to it.

101
CHAPTER 15
FINDINGS

101. CLOSING OF COURT AND DELIBERATION. After all the evidence has been received and the arguments and statements have been made, the court closes to determine its findings. Before voting, the members of the court may desire to discuss the· evidence and the merits of the case. So that no member’s opinion will be influenced by superiority in rank, the members should express their views in inverse order of rank, begin­ning with the junior member. Discussion should be frank and informal, but it should not take the form of members stating how they intend to vote. The requirement for voting by secret written ballot (AW 31) is to prevent any member being unduly affected by the decision of other members.
1:02. VOTING PROCEDURE. After the discussion is completed, the junior member of the court distributes a ballot to each member. The court will vote first on the specification, or specifications, and then on the charge. If there are two or more charges, the court will vote first on the specifications to Charge I, then on Charge I, next on the specifications to Charge II, then on Charge II, etc. The necessity of voting on the specification before voting on the charge is clear. It cannot very well be decided that the accused has violated the Article of War set out in the charge until it has first been determined whether he did the acts alleged in the specification. After e3lCh vote, the junior officer ‘collects the ballots and counts them in the presence of the president, who verifies his count and announces the result to the court.
103. NUMBER OF VOTES REQUIRED. To find an accused guilty of any charge or specification, a two-thirds vote of the members present at the time the vote is taken is sufficient in every case except for a conviction of spying in violation of AW 82. For that offense a unanimous vote is necessary for conviction. AW 43 requires unanimity for conviction of “an offense for which the death penalty is made mandatory by law” and violation of AW 82 is the only such offense. All other convictions, even for offenses for which the death penalty may be imposed, such as wartime desertion, mutiny, sleeping on post, or murder or rape, require only a two-thirds vote. In determining how many votes are needed to
make the required two-thirds, a fraction is counted as one. Thus, assuming that eight members are present at the time of voting, six votes would be’ necessary to convict. Two-thirds of 8 is 5%, but since the % counts as a whole vote, the requirement for two-thirds is not met unless six members concur. Unless two-thirds of the members (or in the case of spying all the members) vote to find the accused guilty of a specification or charge, the accused is acquitted of that specification or charge. The court may, however, take as many ballots on any specifica­tion or charge as it sees fit, the final result not being conclusively de­termined by the first ballot. For example, if on the first ballot only five of nine members present voted to find the accused guilty of a specifica­tion, the court could, if it saw fit, vote again.on the same specification and if 6 members then voted to find the accused guilty, the accused would be convicted. Conversely, if the required two-thirds voted to find the accused guilty, it would be possible to take another vote upon which less than two-thirds might be obtained. In short, the court may reconsider its findings, vote again, and come to a different result at any time until it has announced its findings or has received evidence of previous convic­tions (par. 78d, MCM).
104. DUTIES OF MEMBERS IN VOTING. Every member must vote on each specification and charge. A refusal or failure to vote would be a neglect of duty and thus a military offense. Each member of the court has sworn to determine the case “accordng to the evidence” and “with­out partiality, favor or affection” (AW 19). In deciding on the guilt of the accused, he must not consider any ~atter which has not properly been placed before the court, nor may he take into account ally previous knowledge or opinion he may have had as to the accused. Every ac­cused is presumed to be innocent until his guilt is proved beyond a reason­able doubt (par. 112a, MCM). As to each offense charged, therefore, the prosecution must establish beyond a reasonable doubt each element of the offense and that the accused was the person who committed it (par. 78a, MCM). Thus, if ona trial for willful disobedience in viola­tion of AW 64 a reasonable doubt existed as to any of the facts which must be established, i. e., that the accused received the command in ques­tion, or that the officer giving it was his superior officer, or that the accused disobeyed it, or that his disobedience was willful, the court could not find the accused guilty. The requirement for proof beyond a rea­sonable doubt, however, does not mean that the prosecution must prove with absolute mathematical certainty that the accused is guilty. No matter how clear the testimony, there is almost always some possibility that the accused may be innocent. The question each member must ask himself is whether in view of all the evidence, he, as a reasonable man, has any substantial, sensible and conscientious doubt as to the guilt of
the accused.
ra3
105. TYPES OF FINOINGS ON SPECIFICATIONS. a. In general. The most copunon findings on a specification are “Guilty” or “Not Guilty.” The court, however, may also find the accused’gJ1iltywith exceptions; ,or guilty with exceptions and substitutions.
b. Findings with exceptions. The evidence may establish that the ac­cused is guilty of a part of a specification but not of the balance,or guilty of the substance of a specification but not of certaindetails alleged. In’such a case~ the court may find the accused guilty of the specification with the exception of the part not proved. For example, if a specifica­tion for larceny alleged that the accused stole “bne billfold, value about $2, and one fountain pen, value about $4.50, property of Private Walter Buntz,” and the evidence. proved merely that the accused stole Private BUIitz’s billfold, the court should convict him of stealing the billfold but not the fountain pen. It would do this by finding him guilty of the specification with the exception of the words in the specification relating to the fountain pen, as follows:
Of the specification: Guilty, except the words “one fountain . pen, value about $4.50,” of the excepted words,not guilty.
c. Findings with exceptions and substitutions. The court is not limited, however, merely to finding the accused guilty with exceptions. ,Where certain allegations in a specification are not exactly established, thecourt ‘ may not only except such allegations but substitute the truedetaili;; shown by the evidence. If, therefore, the names of pers()ns, dates, or places, descriptions of articles, sums of money, etc., which are set out in a specification are shown by the evidence to be incorrect, the court in its findings on the specification should except such statement, substitute the correct facts shown by the evidence, and find the accused not guilty of ~he excepted words but guilty of the substituted words. For example, if a specification alleged that the accused stole “one gold watch, value about $85,” and the evidence established that, although he stole the gold watch, its value was only $13, the court in its finding on the specification , woul<i except the figures “$85” and substitute the figures “$13,” as follows:
Of the specification: Guilty, except the figures “$85,” substitut­ing therefor the figures “$13”; of the excepted figures, not guilty, and of the substituted figures, guilty.
The power to make exceptions and substitutions does not authorize the court, however, to find the accused guilty of a different or greater offense than was charged. For example, if the specification alleged that the accused stole a watch and the evidence showed that he stole a fountain pen, the court could not by exceptions and substitutions find him guilty of stealing the latter article since that is a different offense. Similarly, if the specification alleged that he stole a watch of a value of $15 (for which a sentence of 6 months confinement can be imposed), he could not by exceptions and substitutions be found guilty of stealing a’ watch of a value of $55 (for which a sentence of 5 years’ confinement might be imposed) , since the latter is a greater offense.
106. LESSER INCLUDED OFFENSES. The evidence in a case may fall short of proving all the elements of the offense charged but may prove that the accused committed a less serious offense which is necessarily included in the offense charged. For example, to prove desertion it is necessary to establish (1) that the accused absented himself without leave,and (2) that he had the intent to desert. The offense of absence without leave is, therefore, necessarily included in desertion. To prove robbery it is neces­sary to establish (1) that the accused stole certain property and (2) that he did so by force and violence or by putting the owner in fear. Larceny (the stealing of the property) is, therefore, necessarily included in robbery. Where the offense described in the specification is not fully proved, but it is shown that the accused committed a lesser included offense, the court by exceptions and substitutions should find the accused not guilty of the offense set out in the specification, but guilty of the less serious offense established by the evidence. If the court’s finding on the specification is simply “not guilty,” the accused will be acquitted, .not merely of the major offense, but of all minor offenses necessarily included in it; ,A finding of not guilty on a specification alleging desertion, for example, will bar any subsequent trial for absence without leave (par. 68, MOM). Before finding an accused not guilty, the court shall consider whether the commission of any lesser included offense has been proved. Some of the’
more common examples of lesserincluded offenses are listed in appendix, infra. The method 01 finding anaccused guilty of a lesser offense is to ex­cept from’ the specification the inappropriate words and substitute the necessary appropriate words. For example, if an accused were tried under a specification alleging larceny in the usual form (app. 4, Form 94, MOM), and the court desired to find him guilty only of thelesser included offense of wrongfully taking the property, it would be necessary to except the words indicating that the accused stole the property and substitute words showing simply a wrongful taking. This would be done as follows:
Of the specification: Guilty, except the words “feloniously take, steal, and carry away,” substituting therefor the words “wrong­fully take and carry away,” of the excepted words not guilty, of the substituted words guilty,
Although the court by exceptions and substitutions may always convict of a lesser included offense, it has no power to find a greater offense nor’an offense of a different nature than that charged, since no one can’ be convicted of an offense of which he has not been fiotified and which he has had no opportunity to d~fend. Thus, if charged with absence without leave,he cannot be found guilty of the greater offense of deser­tion; if charged with larceny, he cannot be convicted of the greater offense, robbery. Similarly, a finding of. a different offense, as; fbI’ example, embezzlement on a charge of larceny, or wrongful pledging of property on a charge of wrongful sale, may not be made.
107. FINDINGS AS TO CHARGES. . After arriving at its findings on the specification or specifications under a charge, the court must then make a finding on the charge itself. A finding on the charge is essential. Where the accused has been found not guilty of the specification under a particu­lar charge, or of all specifications if there are more than one, the only pos­sible finding on the charge itself is “not guilty.” Since the accused was not guilty of doing the acts alleged in the specification, he did not violate the Article of War set out in the charge. I:f, however, the accused is found guilty of thespecification or specifications, the finding on the charge should be “Guilty.” Thus, if the accused is tried on a charge of violating the 58th Article of War and on a specification alleging that he deserted the service of the United States, and he is found guilty of the specification, he must be found guilty of the charge-i. e., of violating the 58th Article of War. Since that article denounces desertion, one who deserts neces­sarily violates it. To find an accused guilty of a charge, it is necessary only that he be found guilty of one specification which describes an offense under the Article of War referred to in the charge. Thus, if the accused were charged with violating the 93d Article of War and there were three specifications under that charge each alleging a different larceny, he must be found guilty of the charge if he is f~und guilty oj one specification, even if he is found not guilty of the other two speci­fications. Larceny is a violation of AW. 93, and an accused who has committed one larceny is as guilty of violating that” Article as if he had committed three, fifteen, or one hundred. Similarly, if under a charge of violating AW 93 there were three specifications, the first alleging robbery, the second alleging mayhem and the third alleging arson, and the accused were found guilty of the third specification only, the finding on the charge must be guilty because arson is an offense denounced by AW 93. In such a case, the findings would read as follows:
Of Specification 1 of the Charge : Not Guilty
Of Specification 2 of the Charge: Not Guilty
Of Specification 3 of the Charge: Guilty
Of the Charge: Guilty

By making exceptions and substitutions in its finding on a specification, the court may have caused the specification to allege an offense which is not covered by the Article of War referred to in the Charge. In such a case, the court must find him not guilty of the Article of War referred to in the Charge, but guilty of the Article of War which covers the new offense of which he has been found guilty. For example, assume a charge of violating the 58th Article of War, and a specification alleging that the accused deserted the service. If on the specification the court by excep­tions,and substitutions found the accused guilty only of the lesser included offense of absence without leave, it could not find him guilty of the Charge. Absence without leave is not a violation of AW 58, but of AW 61. The court’s finding on the charge in such case should read as follows:
Of the Charge : Not guilty, but guilty Of a violation of the 61st Article of War.
108. FINDINGS AS TO JOINT ACCUSED. ‘If two or more accused are charged jointly, separate findings on each specification and charge must be made as to each accused. Thus, if Privates Timothy Binz and Roderick Random were jointly charged with robbery and were found guilty of the specifications and the charge, the findings should be made in this form:
As to Private Roderick Ra.ndom-
Of the Specification 6f the Charge: Guilty
Of the Charge: Guilty.

As to Private Timothy Binz-
Of the Specification of the Charge: Guilty.
Of the Charge: Guilty.

If one or more of joint accused is acquitted and one or more convicted, the findings should by proper exceptions eliminate the words showing that the person acquitted jointJ.y participated in the offense. Thus, if in the trial of Privates Binz al1d Random, the former was found not guilty and the latter guilty, it would be necessary in making the finding as to Random
to except the reference to Binz and the words indicating that the offense was joint. The finding in such case would be in the following form:
As to Private Timothy Binz-‘-.
Of the Specification of the Charge: Not Guilty.
Of the Charge: Not Guilty.

As to Private Roderick Random-
Of the Specification of the Charge: Guilty, except the words “Private Timothy Binz,Oompany C, 143d Infantry,” and “acting jointly and in pursuance of a common intent,” of the excepted words, not guilty.
Of the Charge: Guilty.
109. PROCEDURE AFTER VOTING ON FINDINGS. After the findings have finally been determined, the court will be opened. If the accused has been found not guilty of all specifications and charges, the president will at once announce that he has been acquitted (AW 29). If, however, he has been found guilty of any offense, the court will make no announcement of its findings, but will call on the trial judge advocate to read the data as to the age, pay, and service of the accused shown on the first page of the charge sheet and to offer any evidence of previous convictions (par. 79a, MOM, and app. 1, this manual). This information is to be considered by the court in fixing the appropriate sentence in much the sam~ way a judge in a criminal court may take into account a defendant1s previous
criminal record and other factors disclosed by the probation officer before imposing sentence. After reading the data from the charge sheet the trial judge advocate should’ ask the’accused if the statement is correct. As already indicated, this data should have been carefully checked before trial, so there should be no inaccuracy or lack of completeness. In the very rare case in which defects may be pointed out, the correct data may be stipulated to or may be proved by taking evidence on the point (par. 79b, MCM). The trial judge advocate will then read to the court any evidence of previous convictions by courts-martial and introduce in evidence as an exhibit the extract copy of the service record of the accused or other proof (such as the court-martial order or record of trial itself) of the convictions. The convictions which may be considered for this purpose are discussed in paragraph 29, supra. At this stage the accused may introduce evidence of the character given him on any former discharges from the military serVIce.
CHAPTER 16

SENTENCES AND PUNISHMENTS
Section I. PROCEDURE
110.
CLOSING OF COURT AND DELIBERATION. After the data and evi­dence described in paragraph 109, supra, have been received, the court will again be closed, so that it may determine the sentence. As in the case of findings, the voting may be preceded by a full and free discus­sion among the members, the junior member being permitted to express himself first to avoid any influence based on superiority of rank. It is proper for the law member of a general court-martial or the president, if the law member is not present or the trial is before a special court­martial, to state at the very outset of.the discussion the punishment which is authorized upon the basis of the findings, provided he does not at that stageindicate his views as to what punishment ought to be im­posed. A clear statement by him of the permissible· punishments will prevent useless discussion or consideration of unauthorized sentences. The matters to be considered in determining the proper punishment are discussed in paragraphs 117 through 120, infra.

111.
DUTIES OF MEMBERS. Every member of the court is req’llired to to vote for a proper sentence regardless of his opinion or vote as to the guilt of the accused. Although he personally may have believed the accused not guilty and may have so voted when the court was consider­ing its findings, the question of guilt has been settled by the court and he must accept that conclusion. The only matter he can now consider is what is an adequate and proper punishment for the offense. If the Article of War which·the accused has violated prescribes a mandatory punishment (par. 118, infra), then it is the duty of each member to vote for that sentence. If the Article leaves the punishment to the dis­cretion of the court, then he must vote for an appropriate sentence, exer­cising his own judgment and voting according to his own conscience. He should, however, give due weight to the opinions of others, and if the court becomes sharply divided, he should carefully re-examine his own views to determine the justness of his decision in the light of conflicting opinions.

11 ~.METHOD OF VOTING. When the discussion is completed, any mem­ber who desires to propose a sentence will write it out on a slip of paper. The junior member will collect these proposed sentences and submit them to the president who will arrange them in order of severity and read them to the court. The court will then vote on the proposed sentences beginning with the lightest. As in the case of findings, the voting will be by secret written ballot, the junior member collecting and counting the ballots in the presence of the president who verifies the count and announces the result of the £ourt. If the first sentence voted on is not adopted, a ballot will then be taken upon the next heavier sentence pro-. posed, and so on until a sentence has received the required· number of votes. If none of the sentences proposed are adopted, a new set of proposals may be made and voted upon.
113.
NUMBER OF VOTES REQUIRED. AW 43 prescribes the number of votes which are required to impose a sentence. For a sentence of death, all members present at the time of voting must concur; for a sentence to confinement for more than 10 years (including; of course, life imprison­ment) concurrence of three-quarters of those present at· the voting is required; for all other sentences concurrence of two-thirds of those pres­ent at the voting is required. Thus, an accused may be convicted of war­time desertion by a two-thirds vote, but to sentence him to death a unanimous vote would be necessa.ry, to sentence him to confinement in excess of 10 years a three-quarters vote, and to impose any other sentence a two-thirds vote.

114.
FORM OF SENTENCE. a. General. After the court has arrived at a sentence, it should be written out in proper form by the president or


law member. The forms for sentences set forth in appendix 9, MCM, should be strictly adhered to. Failure to express the sentence in proper form may result in an illegal or ineffective sentence or one which does not express the result which the court .desires.

b.
Sentence must be single. Regardless of the number of offenses of which the accused has been convicted, the court will impose a single sentence. The sentence will not be so phrased as to indicate. that part of the punishment is imposed for one offense and part for another offense.

115. SENTENCES FOR JOINT ACCUSED. If two or more accused are jointly tried and convicted, a separate sentence must be adjudged as to each precisely as if they had been separately tried. A different punish­ment may be imposed on each if there are extenuating circumstances as to some not existing as t@ others or if the degree of guilt is different. Even if precisely the same punishment is imposed on all, however, the sentence as to each must be separately stated. Thus, if Privates Binz and Random were jointly convicted of robbery and the court desired to
110
impose confinement for 5 years on both, the sentence would be phrased as follows:
As to Private Timothy Binz:
To be dishonorably discharged the service, to forfeit all pay and allowances due or to become due and to be confined at hard labor at such place as the reviewing authority may direct for 5 years.
As to Private Roderick Random:
. To be dishonorably discharged the service, to forfeit all pay and allowances due or to become due and to be confined at hard labor at such place as the reviewing authority may direct for 5 years.
1’16. ANNOUNCEMENT OF SENTENCES; CLEMENCY; ADJOURNMENT.
When ready to disclose its sentence, the court should be opened, the accused brought before the table wh~re the court sits, and the president should then announce the findings and sentence of the court. The form for this an­.nouncement is set out in appendix 1,pp. 156-:-167, infra. In announcing the ll.lldings anq sentence, the president should state only the proportion of .members voting for the finding or the sentence which. is required by AW 43. Thus, if an accused were found guilty of any offense, except spying in violation of AW ’82, the announcement of the findings should be “two-thirds of the members present at the time the vote was taken concurring in each finding of guilty,”. even if ,there was actually a unanimous vote or a proportion greater than two-thlrds~ If the accused were ‘sentenced to 10 years’ confinement or less, the announcement should refer to, the concurrence of “two-thirds” of the members; if sentenced to more than 10 years to “tlm~e-fourths” of the members; and if to death to “all the members.” If there is good reason for not disclosing them, the president will state that the court has directed that the findings and sentence be not announced. It is only in a rare case that there. are sufficient reasons of policy for not announcing the findings and sentence in open court. Even if not announced, the findings and sentence must be revealed to the trial judge advocate who must record them (app. 6, pp. 268-269, MCM) and notify the commanding officer of the accused of the result of trial (par. 41b, MCM). After the announcement of findings and sentence (or statement that they are not to be announced) , the defense counsel may submit any documents or other matters relating to clemency which he desires the court to consider. (See ch. 11, supra.)
When all clemency considerations have been disposed of, the court will adjourn unless the trial judge advocate has other cases to present at that time. In the latter case, the court will take up the next case.
Section II.. PUNISHMENTS-GENERAL LIMITATIONS
117: CONSIDERATIONS IN DETERMINING PUNISHMENT. a. Sentence should be adequate and appropriate. So far as the sentence is discre­
tionarry, the court should impose . punishment which is adequatefor the
offense and app1’op1’iate {.1′ the offende1′;Rvoiding .. the one hand undue
leniency and .. the othe1′ excessive ha1’shness. Any extenuating 01′ ag­
gravating ci1’cumstances involved in the commissionof the offense,to­
gethe1′ with the cha.acte1′ and 1’ecord of the accused, as shown .. p1’evious
convictions and p1’evious Si:)1’vice, should .. taken into account. . cou1’t
which ..t.m.ti..ll. imposes the m..im.m sentence in eve1’yease is rlOt
pe1’fo1’ming its .1’…1′ function. .. the othe1′ hand, inadequate sentences
… have even ..1′. s.1’i..s consequences. The 1’eviewing autho1’ity has
powe1′ to 1′.d…-an excessively seve1’e sentence, but he cannot … to the
…ishm..t .. matte1′ how inadequate it … … U.du. l..i…. co.~
pletely ties the 1′.vi.wi.g ..tll.1’it.’s h..ds ..d, whe1’e the .ff..s. isof
. civil nature whicll wOlHd .. .u.ish.d seve1’ely .. the civil cciu1’ts,
m.ay b1’ing the enti1’e system of milita1’Y justice intb dis1’epute.
.. Limitations .. court’s discretion. … cbu1’tdoes ..t i. … case have
. completely …..t1′.ll.d disc1’etion. Fi1’st, it must …sid.1′ what …­
ishm..t is autho1’ized {.1′ the particula1′ .ff..s., since .u.ishm..t fo1′
that .ff..se … .. m..d.t.1′.–.:…i. .., specifically presc1’ibed’ bythe
A1’ticle of Wa1′, 01′ it … .. limited .. the …. of …i.llm Punish­
ments. S….d, if the case is t1’ied .. .. i.f.1’i.1′ cou1’t, it must conside1′
whether it has jurisdi.ti.. to impose the kind and amount of .u.ish­
m..t which is autho1’ized {.. that offense. Thi1’d, it nlUst …sid.. the
status and 1′..k of the accused, si… .. types of punishment … 110t
applicable or app1’op1’iate to .. types of accused. Fourth, it must select
.. autho1’ized kind of .u.ishm..t ..d …sid.. the possible limitations
.. the .m…t of that .u.ishm..t and the ci1’cumstances unde1′ which
it … .. adjudged.
118.
MANDATORY SENTENCES. Some offenses ca1’ry . mandato1’Y …iS’h­ment, that is, the A1’ticle of Wa1′ denouncing that offense p1’ovides the specific punishment which mus. .. imposed upon ~onviction. Fo1′ spying in violation of .W 82, the death penalty must .. imposed; {.1′ conduct unbecoming an ….1′ and . gentleman in violation of .W 95, dismissal {1′.. the se1’vice is mandato1’Y. As to these offenses the ….t has abso­llltely .. discretion in dete1’mining the sentence, its only f…ti.. being to adjudge the sentence which the statute requires. It cannot add any­thing to the prescribed …ishm..t, no1′ give anything less. For mu1’de1′ 01′ 1’… in violation of .W 92, death 01′ life imp1’isonment a1’e the only possible punishments, the court having simply the powe1′ to choose one 01′ the othe1′. Fo1′ othe1′ offenses (AW 56, 57,85, and 87) the .u.ishm..t ispa1’tly mandatory and pa1’tly disc1’etiona1’Y, that is, those a1’ticles 1’equi1’e dismissal, but pe1’mit the cou1’t to adjudge such additionalpunishment as it sees fit. .. ….1′ cOllvicted of beillg d1’unk .. duty in time of wa1′ (.W 85), {.1′ example, must .. sentellced to dismissal, but, unlike the case of . conviction {.1′ conduct unbecoming an o:ffice1′ alld . gentle­

… (AW 95), the cou1’t … add . :l’u1’the1′ punishment if it chooses. Wlle1’e the sentence is mandato1’Y 01′ pa1’tly mandato1’Y, :l’ailure 0:1′ the cou1’t to adjudge the punisll1nent which the statute 1’equi1’es makes its sentence illegal and 0:1′ .. e:ffect.

119.
TABLE OF MAXIMUM PUNISHMENTS. . ..Definition. … punish­ment .. o:ffensesothe1′ than those 1’e:l’e1’1’ed to in pa1’ag1’aph 118 is left .. the A1’ticles .. Wa1′ to the disc1’etion .. the cou1’t, the A1’ticles gen” e1’al1y p1’oviding that the o:ffense should .. punished “as . cou1’t-martial … di1’ect.” Howeve1′, .. .W 45, the P1’esident was· autho1’ized to establish limits 0:1′ punishment fo1′ …. o:ffenses. .. the …. .. …­imum Punishments set out in pa1’ag1’aph 1040, …,-the P1’esident establislled such limits :1’01’ …. offenses. … punishment provided in tl.t table :1’01’ .n. o:ffense is simply the .ammJlJlJn tl.t … .. imposed. It is not ~ 1’equi1’edpunishment, and the court … adjudge less than tl1at set out in the table in .n. case.

.. .. whom applicabIe. Tlle limitations p1’ovided in the table a1’e applicable only to o:ffenses committed .. enlisted ..n, including p1’is­oners unde1′ asuspended sentence 0:1′ dishono1’able discha1’ge. As to ..­fenses committed .. .th.’ pe1’sons triable .. cou1’ts-martial, commissiol1ed office1’s, wa1’1’al1t al1d flight officers, .viatiol1 cadets, p1’isone1’s whose dis­1101101’able discha1’ge has …11 executed, al1d civilians, the1’e is 110 legal maximum othe1′ thal1 that p1’ovided il1 the A1’ticles o:l’War; Howeve1′, the maximum established il1 the. t,able … .. used as . stal1dard :1’01’ dete1’IOil1­ing the app1’opriate amoul1tof punishment fo1′ such pe1’sol1s. Inthe …. .. civilial1s, adhe1’ence to that maximum should .. the 1’ule (see WD Cil’. 175,1943).
.. Offenses covered .. tabIe. … maximum p1’ovided il1 thE:\ table as to . particula1′ o:ffense is also applicable to .l1. included o:ffense not listed 01′ to .n. closely 1’elated offense which is not listed. Fo1′ example, the table does not p1’ovide .l1. pUl1ishmel1t fo1′ w1’ol1g:l’ul takil1g 0:1′ p1’ope1’ty il1 violatiol1 0:1′ .W 96. That does not …. that there is 110 limit te tlle pUl1ishment :1’01’ w1’ongful taking, howeve1′, sil1ce w1’ol1gful takil1g is il1­cluded in the o:ffense .. la1’ceny. The1’e:l’o1’e, it canl10t .. punished .l1. mo1’e seve1’ely thal1 … la1’cel1Y .. the same amoul1t 0:1′ property. Simi­l..l., th… is 110 punishmel1t p1’ovided … the offel1se .. kl10wingly receiv­il1gstolel1 goods il1 violation .. .W 96. …t o:ffel1se is not il1cluded il1 .n. o:ffense listed, but it is closely 1’elated to t.. o:ffenseof la1’cel1y. It is, th…:l’…, g.v…d .. the maximum applicable to l….l1..
d. Offenses to which limitation in tabIe .. longer applies. … limita­tiol1ol1 punishmel1t .. some o:ffeHses listed in the table is .. 1011ge1′ in effect. … maximum .st.blis..d fo1′ t.. o:ffense .. will:l’ul disobedience .. . supe1’io1′ office1′ in violation .. .W 64 is 110t applicable “in time 0:1′ wa1′ 01′ g1’avepublic .m..g.n…” ….. is now, the1’efo1’e, .. limitation uponthe pUl1ishment fo1′ t..t o:ffe.se. (. will .. noted that the table
11 3
containsnoniaximum at .. as to the offense ,of assaulting asuperior ….. in violatibn of .W64.) Thelimitation .. punishments 1.. viola­tion .! AW 58 (desertion), .W 59 (advising .. persuading aMther to desert) … .W 86 (misbehavior .! sentinel) were suspended .. ….. .! the President as to offenses committed after 3 February 1942 (Execu­tive ….. 9048, 3 F……. 1942; Sec. IV, .u.. 6, WD, 1942; … Note, .. 97, …. 104., …). Violations .! those Articles committed …. that date … …ish….. death ..s..h other punishment as th…..t­m..ti.l… direct. However, {.. SUCh offenses committed .. .. before 3 February 1942 the l11..i..lm is still in effect. Thus, .. ….s.d WhO is tried today {.. having deserted .. 1 February 1942cannot .. punished …. severely thanthe table allows. … limit.ti…… …islun..t {.. absence without l..v.f…;1 ..ni….; g…d,’q…t.rs, station,or …. in violation .! .W 61 was s.s…d.d .. ordel’ .! the President as to such offenses committed afte’l’ 1 December 1942 ,(Executive ….. 9267, 9 NovemberI94.2;Se~. 1, ….,57, WD, 1942; … Note, .. 97, …. 104<:, …). Absence withoutleave .. .. before 1 December 1942 ispunish­… only to the extent provided in thetabIe. It will .. noted that in addition to ‘absence with..t leave {… ……., g…., quarters, station, .. …., .W 61 also makes it .. offense to {.. to repair at the …. time to the ……l. appointed place .! d.t. .. to go {… the same with..t …… leave. … President’s ….. did not s.s…d the m..im.. as to these two latter offenses. ., therefore, . soldier today fai1ed to repair
‘for .. in violation .! AW 61 …… .. …ish.d onlytothe extent permitted bythe table-i. .., .. forfeiture .! 3 days’ ….
120. SUBSTI.UTED PUNISHMENTS. … …. .! Maximum …ishm..ts state the maxinium …ishm.:iit in terms .! confinementor f..f.it… .. both. It containsnoreference tosuch otherrorms .! punishment as …. ‘Iabor without confinement, restriction,to’ the limits, ordetention .! …. For …….. minor offenses these latter fo’rms .! ..rishm..t w..ld .. …. appropriate. Unless . dishonorabIe discharge is imposed, the ….t has discretion to s..stitut. other …ishm..ts {.. those stated in the tabIe. … basis {.. such s..stituti.. is set out in . tabIe .. page 96, …. From that tabIe it will .. seen that the f…wi.g …ishm..ts … equivalents: f..f.it… .! 1 day’s …, confinement at …. labor {.. 1 …, detention .! 11;2 day’s …, …. l….with..t confinement {.. 11/2 days, … restriction to the limits {.. 3 days. If .. enlisted … were convicted .! being drunk’.. d.t. in violation .! .W 85, {.. example, {.. which the maximum punishment is f..f.it… .! 20 days’ …, the court …ld su.stit.t. other …ishm..t!’J f…. .. part of the 20 days’ f..f.it… at the rates j.st referred to. Sillce 1 day’sforfeiture is equivalent to 1 day’s confinement, it could substitute 20 days’ confinement; since 1day’s f..f.it… is equivalent to 111/2 day’s …. labor with..t confinement, it …Id substitute 30 days’ …. labor
without confinement; since 1 day’s forfeiture is equivalent to 3 days’ restriction to the limits, it could substitute 60 days’ restriction to the limits. Or it could substitute other punishments for part of the author­ized forfeiture. Thus, it could impose forfeiture of 10 days’ pay and for the remaining 10 days’ forfeiture authorized substitute 10 days’ con­finement of 15 days’ hard labor without confinement or 30 days’ restric­tion. Substitutions oannot be made if a .dishonorable disohar(fe is imposed. They are of importance chiefly in cases of minor offenses. By substituting additional forfeitures, or hard labor without confine­ment, or restriction, for the authorized confinement in such cases, .the accused will be adequately punished but will not be kept from his regular duties as he would be if the sentence included confinement. In making substitutions the court must keep in mind the limits on its own jurisdic­tion and on particular types of punishment. Thus, if the authorized punishment for’ an offense were confinement at hard labor for 1 month and forfeiture of two-thirds of 1 month’s pay, a summary court-martial could not impose additional forfeitures in place of all or any part of
the confinement, since it has no jurisdiction to forfeit more than two­thirds of 1 month’s pay. Similarly if the authorized punishment for an offense were 2 months’ confinement and forfeiture of two-thirds pay per month for 2 months, no court could substitute restrictions for all the confinement (that is, 3×60, or 180 days) since in no event may restriction be imposed in excess of 3 months (i. e., 90 days). It is to be especially (noted that the Table of Maximum Punishments and the Table of Substitutions are to be used by the oourt in cases involving enlisted personnel only, excluding aviation cadets, warrant officers, and flight officers and including general prisoners not dishonorably discharged (par. 104a, MCM). In no case may the reviewing or higher authority make use of the Table of Substitutions in taking his action. (Par. 104c, MCM.)
Section III. TYPES OF PUNISHMENTS
121. CONFINEMENT AT HARD LABOR. a. Definition. By this punish­ment the accused is imprisoned and required to perform hard labor during such imprisonment. Confinement “without hard labor” cannot be imposed (par. 103i, MCM), since it is not desirable that a prisoner serve out his term in idleness. Even if the words’ “at hard labor” are omitted in the sentence, the prison authorities may require performance of hard labor by the prisoner (AW 37) and normally should do so. (See par. 20, AR 600-375, 17 May 1943, and par. 5, AR 6()(}-.,395, 28 March 1944.) .
b. Who subject to. Any person triable by court martial may be sen­
tenced to confinement at hard labor. Such a sentence cannot be adjudged ; In the case of a commissioned officer, unless he is also sentenced to
632260°-45-9
dismissal; and in the case of a warrant officer, flight officer,or aviation cadet, unless he is.also sentenced to dishonorable discharge.
c.
Length of confinement. The amount of confinement which may be imposed is subject, in the case of enlisted men, to the limitations, if any, imposed by the Table of Maximum Punishments for the offense. (See par. 119, supra.) Special and summary courts-martial cannot, of course, adjudge confinement in excess of their jurisdictional limits-‘-i..e., ,6 months and 1 month respectively. A general court-martial cannot adjudge more than 6 months’ confinement in the case of an enlisted. man without sentencing him also to a dishonorable discharge (par. 104b, MOM).

d.
Imposing forfeiture with confinement. It is contrary to the policy of the War Department that a soldier should serve a sentence of confine­ment without some forfeiture of pay, in the absence of special circum­stances. The mere fact that he is in confinement does not automatically result in any forfeiture of pay. The sentence must expressly provide for forfeiture. In every instance in which confinement is authorized in the Table of Maximum Punishments, forfeiture is also authorized. For example, the offense of larceny of property of a value of $20 or less in violation of AW 93 carries 6 months’ confinement at hard labor. Although there is no· entry in the column headed “Forfeiture” in the table as to that offense, the entry “Yes” in the column headed “Dishon­orable discharge and forfeiture of all pay and allowances” shows that total forfeitures are authorized, and, of course, a lesser forfeiture is, therefore, allowable.

e.
Form of sentence. (1) The appropriate forms for sentences of con­finement at hard labor are set out in app. 9, MOM. (See particularly Forms 6 and 7.) Care should be taken to state that the accused is to be “confined.” A sentence to “serve” at J.1ard labor, for example, does not provide for confinement and would result simply in the performance of hard labor without confinement, which would not carry out the intention of the court. The sentence should expressly state that the confinement is to be “at hard labor,” although, as pointed out above, the omission of these words will not prevent hard labor being required. It is not the function of the court to designate the place of confinement, and any such designation in the sentence is improper and ineffective (par. 103i, MOM). A sentence of a general court-martial should provide for confinement at hard labor “at such place as the reviewing authority may direct” (app. 9; Form 7, MOM), since there are several possible places of con­finement of prisoners sentenced to dismissal or dishonorable discharge. (See par. 5, AR 600-375,17 May 1943.) These words are usually not included in a sentence imposed by a summary or special court-martial (app. 9, Form 7; MOM), since normally there is only one place in which a garrison prisoner is confined-i. e., the guardhouse of the organization for which the inferior court wa.!’ appointed.

(2) Sentences of confinement at hard labor in excess of 1 month should not be stated in terms of days-e. g., “ninety days”-but in terms of months-e. g., “three months.”
122. HARD LABOR WITHOUT CONFINEMENT. a. Definition. A sentence to perform hard labor without confinement requires the accused to perform hard labor in addition to· his regular duties for the number of days or months provided in the sentence. In no case can it be imposed for more than 3 months (par. 103i, MCM). The accused is not to be excused from his assigned duties so that he may perform the hard labor, the very purpose of the sentence being to exact extra work of a laborious nature from him during such time as may be available after he has completed his other tasks. Since the labor is to be performed in time which he would otherwise have free, 1 day’s hard labor cannot be measured in terms of hours. The performance each day of the assigned task after his normal duties are done satisfies the sentence whether the particular task takes 1, 2, or more hours. A sentence to perform hard labor doe~ not subject the accused to any legal restraint. His freedom of action is limited as a practical matter by having to do additional work after his normal duties are performed, but legally he is as free to come and go as any other soldier.
b.
Who subject to. Hard labor without confinement is an appropriate punishment for enlisted men only. It may never be imposed on officers, warrant officers, flight officers, Army nurses, or aviation cadets (par. 1030, MCM).A noncommissioned officer or private first class who is sent~nced to perform hard labor is automatically reduced to the grade of private if the sentence is approved and either ordered executed or suspended (par. 103d, MCM; par. 13a, AR 615-5, 30 June 43).

c.
Execution of sentence. Since the sentence itself simply provides for the performance of hard labor for a certain number of days or months, some one must designate the particular tasks which the accused is to perform. Normally, the immediate commanding officer of the accused will designate the amount and character of the work to be done, although, of course, the reviewing authority may do so.

123. RESTRICTION TO LIMITS. a..Definition. By this punishment the accused is deprived of the privilege of going outside the area fixed in the sentence. He may, for example, be restricted to the limits of the camp, or of his regimental or company area. As in the case of arrest prior to trial, the restraint is moral, not physical. The person restricted will not be • exempted from any military duty by reason of his sentence.
b.
Who subject to. Restriction to limits is an appropriate form of pun­ishment for all military personnel whatever their rank or status.

c.
L~ngth of restriction. Every type of court-martial may impose re~ striction, but no ~ourt-martial may impose it in excess of 3 months (par. 103!, MCM).

117
124. FORFEITURE OF PAY. G. Definition. ‘A. sentence of forfeiture de­prives the accused of the amount provided in the sentence for the number of months or days stated therein. That amount is collected out of pay only (par. 7, AR 35-2460, 21 May 1942). Allowances are not forfeited except under a sentence “to forfeit all pay and allowances” which, in the case of enlisted men, can be imposed only with a dishonorable discharge. No punishment-whether it be death, dismissal, dishonorable discharge, or imprisonment-automatically results in forfeiture or deprivation of any payor allowances due the accused. If the court intends to forfeit pay, or pay and allowances, it must expressly adjudge the kind and amount of forfeiture in its sentence (par. 103g, MCM; par. 2b, AR 35-2460,21 May 1942). A court-martial has no power to assign or appropriate the pay of an accused to reimburse the Government or any agency or person, nor to require the accused to pay any debt or satisfy any obligation (par. 103g, MCM).
b. Who subject to forfeiture. A sentence of forfeiture is an appropriate form of punishment for all military personnel whatever their rank or status. Civilians who may be tried by court-martial are, however, sub­ject to forfeiture only as to pay due them from the United States Gov­ernment. If, as in the case of a newspaper correspondent or an em­ployee of a contractor, for example, they are being paid by someone other than the United States, a money penalty can be adjudged only in the form of a fine. (See sec. IV, WD Cir.175, 1943 and par. 125, infra.) .,
c•.Amount of forfeiture. A summary court-martial may forfeit two­thirds of 1 month’s pay (AW 14). A special court-martial may forfeit two-thirds pay per month for 6 months or less (AW 13). A general court-martial is not limited as to the amount of forfeiture it may impose, but in the case of an enlisted man it may not forfeit more than two-thirds pay per month for six months, unless it also sentences the accused to a dishonorable discharge (par. 104b, MCM). In such a case, it should adjudge total forfeitures-i. e., forfeiture of “all pay and allowances due or to become due.”
d. Pay subject to forfeitures. A forfeiture applies to base pay, longevity pay (that is, the 5 percent increase for each 3 years of service) and the increased pay for sea duty or foreign duty (if not in a status of con­finement; see WD Cir. 484, 1944). Except in case of a sentence of total forfeitures (imposed only with a dishonorable discharge) no
• other pay is subject to forfeiture. To illustrate: An enlisted man of the fourth grade (i. e., a sergeant), who has 4 years of service and is over­seas, receives base pay of $78 per month (AR 35-2340, 31 August 1942), which is increased by 5 percent-i. e., $3.90, for 3 years service (AR 35­2360, 7 December 1944) and by 20 percent-i.e., $15.60, for foreign service (AR 35-1490, 15 September 1944). The amount of monthly forfeiture a court could impose upon him, therefore, would be two­thirds of $97.50. Additional pay for particular duties such as aviation pay (AR 35-1480, 10 October 1942) or pay for parachute duty (AR 35­1495, 1 December 1944) is not part of his pay which can be forfeited. Thus, if the sergeant just referred to received $50 additional pay because required to engage in parachute jumping, the basis for determining the amount of monthly forfeiture would still be $97.50.
.e. Class F deductions. Itis the policy of the War Department that the amount of an enlisted man’s monthly contribution to family allowance be excluded in computing the amount of his pay subject to forfeiture. (See par. 38, AR 35-5540, 5 January 1944.) Any Class F deduction is, therefore, to be subtracted from his base pay. Thus, if there were a Class F deduction of $27 from the pay of a private (whose monthly pay is $50), his net pay subject to monthly forfeiture is $23. Hence, the maximum allowable forfeiture (two-thirds of the net pay) would be $15.33. Other allotments or deductions, however, are not excluded in determining the amount of net pay subject to forfeiture.
f. Effect of reduction of noncommissioned officer or private first class. In
computing the amount of forfeiture, the court should remember that if a noncommissioned officer or private first class is reduced to the grade of private by the isentence, the forfeiture must be based on the pay of his reduced grade, that is, on a private’s pay. Thus, if a sergeant, whose pay is $78, is reduced by sentence of court-martial, the maximum monthly forfeiture would be $33.33-i. e., two-thirds of $50. There are two ways in which a noncommissioned officer ‘or private first class may be reduced by a court-martial sentence. (1) The sentence may expressly provide that he is to be reduced. Thus, a sergeant might be sentenced “to be reduced to the grade of private,” either separately or with some other form of punishment, forfeitures, for example. (2) Even if the sentence does not expressly provide for reduction, a noncommissioned officer or private first class is nevertheless automatically reduced if the sentence includes dishonorable discharge, confinement at hard labor, or hard labor without confinement, and such sentence is carried into execution or suspended. For example, if a sergeant were sentenced to be confined at hard labor for 3 months and to forfeit two-thirds pay per month for a like period, and the reviewing authority approved the sentence and had it carried into execution or suspended it, the :sergeant would be auto­matically reduced to a private on the date of the reviewing authority’s action. (See par. 16a, AR615-5, 30 June 1943.) When, therefore, a court-martial sentences a noncommissioned officer or private first class either to reduction, to confinement at hard labor, or hard labor without confinement, it should compute any forfeiture it imposes on the basis of a private’s pay and not on the pay which the aCcused is receiving at the time of trial.
g. Forms of sentences. (1) Forfeitures should be expressed in terms of dollars, or·dollars and cents, not in fractions of months’ or_days’ pay-i. e., “To forfeit $33.33,” not “To forfeit two-thirds of 1 month’s pay” (par. 1, app. 9, MOM, and AR 35-2460,21 May 1942).
(2)
If the forfeiture is for more than 1 month, it must be expressed as forfeiture of a definitesum per month (par. 1, AR 35-2460, 21 May 1942). Thus, a sentence “to forfeit $33 for 6 months,” omitting the words “per month,” means a forfeiture of only $33. So also, a lump sum forfeiture can forfeit no more than two-thirds of the accused’s pay for 1 month. For example, in the case of a soldier receiving $50 per month, a forfeiture of an amount equal to two-thirds of his pay for 6 months expressed as a lump sum-i, e., “$199.98” rather than as “$33.33 per month for 6 months”-is interpreted as forfeiting only $33.33. Forfeitures must not only be stated in terms of dollars and cents per month, but it must also clearly appear for how many months the forfeitures are to run. Thus, a sentence to be confined at hard labor for 6 months and “To forfeit $33 per month” is indefinite as to the amount of the forfeiture. The forfeiture should have been expressed as “$33 per month for a like period” (Form 8, app.9, MOM).

(3)
Forfeitures should not be expressed in terms of days, i. e., “$33 ‘ per month for 45 days” or “$1.10 per day for 45 days.” If it is desired to impose forfeiture of a soldier’s pay for 1 or more months and a fractional part of another month, the better method is to compute the total amount­to be forfeited in dollars and cents and divide it into even months. Example: A forfeiture of $14 per month for 1 month and 15 days, amounts to $21. This may be stated as “$10.50 per month for 2 months.”

125. FINES. a. Definition. Whereas a forfeiture deprives the accused of all or part of his pay, a fine makes him pecuniarily liable*”. general to the United States for the amount of money specified in the se tence. He owes the United States that amount whether or not he g ts any pay. The United States may collect that debt in the way ifl which it collects other debts due to it, by suit if necessary. A fine is expressly authorized as a punishment for violations of AW 80 (dealing in captured property) and of AW 94 (frauds against the Government), the object being to reimburse the United States for amounts thus illegally diverted from the public treasury for private purposes.
b. Who subject to. Fines should not be imposed on military personnel, either enlisted men or officers, except perhaps in the case of aggravated embezzlements or other frauds by a disbursing officer,for instance, where a large sum is necessary to make good the defalcation. The proper form of monetary punishment for military personnel is forfeiture of pay. In the case of civilians triable by courts-martial, however, forfeiture of pay cannot be adjudged except as to pay due them from the United States Government. A fine and not a forfeiture is, therefore, the appropriate method of imposing monetary punishment on a civilian. A sentence im­posing a fine may at the same time impose confinement in the alternative upon failure to pay the fine, at the rate of 1 day for so many dollars of the fine remaining unpaid. (See sec. IV, WD Oil’. 175, 1943.) Summary and special courts-martial as well as general courts-martial have juris­diction to impose fines.
126. DETENTION OF PAY. a. Definition. By this form of punishment, the amount specified in the sentence is withheld from the pay of the ac­cused until he is finally separated from the service, when it will. be repaid to him on a final statement. (See par. 9, AR 35-2460, 21 May 1942.) It differs from forfeiture in that the amount detained is ulti­mately returned to the accused when he leaves the service. It is, there­fore, a less severe form of punishment.
b.
Who subject to. Only enlisted men in the Army are subject to deten­tion of pay (par. 103g, MOM).

c.
Amount of detention. A summary court may not detain more than two-thirds of 1 month’s pay (AW 15). A special or general court­martial may not detain more than two-thirds pay per month for 3 months (par. 104b, MOM). Pay which is subject to detention is the same as the pay which is subject to forfeiture. (See par. 124d, supra.) No court­martial can combine both forfeitures and detention so as to affect more than two-thirds of any 1 month’s pay.

121
CHAPTER 17
COURT-MARTIAL RECORDS

127. IN GENERAL. Every court-martial, like every court of law, must pre­pare a record of its proceedings. This record may be so informal as to be wholly contained on the four pages of a charge sheet, as in the case of a summary court record, or it may consist of several volumes oftesti­mony and exhibits as occasionally occurs in a complicated general court­martial trial. The duty of preparing a general or special court-martial record falls on the trial judge advocate, while a summary court officer is responsible for the preparation of records of the trials he conducts. (See ch. 9, supra.) While no record of the testimony at a trial by sum­mary court is made, all testimony at a general court-martial is recorded by question and answer, and testimony at a special court-martial is re­corded either by question and answer or by a summary of evidence depending on whether a reporter was authorized by the appointing authority and served at the trial.
128. GENERAL COURT-MARTIAL CASES. a. Number of copies of record.
An original and one carbon copy must be made of every general court­martial record whether or not the accused requests a copy. A separate carbon copy will be prepared for each additional accused.
b.
Reporters. Civilians or enlisted men may serve and be compensated as reporters at general courts-martial trials without any authorization by the appointing authority. (As to their rates of compensation, see par. 2, AR 35-4120, 30 July 1943.) No military personnel except en­listed men (and women) of the Army and retired military personnel may receive extra compensation for acting as reporter. No compensa­tion can be made for extra carbon copies unless authorized by the ap­pointing authority or ordered by the court, and in no event mayan enlisted man be paid additional compensation for making extra copies of the record. A copy of the reporter’s voucher ‘must be attached to the record of trial. For a specimen completed reporter’s voucher, see appendix 2, p. 190, infra.

c.
Form and contents. The use of the printed form for record of trial by general court-martial (WD AGO Form 114), though not mandatory, will result in the avoidance of many procedural and formal errors as well as in reducing the amount 6f stenographic work required. The

record should be typed on only one side of the paper. The contents of the record are discussed in paragraph 85b, MOM. Great care will be taken to follow the forms contained in appendix 6, MOM. A specimen record of trial may be found in appendix 2, this manual.
d.
Examination by defense counsel. The defense counsel will examine the record of trial before it is authenticated. A .suitable notation that this duty has been accomplished should be included on the page bearing the authentication, as, for example, the word “Examined” followed by the signature or initials of the defense counsel. (See app. 2, p. 212, infra.) If because of death, disability, or absence, the defense counsel is unavail­able, the assistant defense counsel, if he was present at the trial, will sign or initial the record in lieu of the defense counsel, reciting the reason therefor. If neither the defense counsel nor the assistant defense counsel is available, the word “Examined” will be followed by the signature or initials of the accused and of one member of the court present at the trial, and the reason for the signature or initials of the member rather than of defense counsel (or assistant defense counsel) will be given.

e.
Authentication. The recor-d will be authenticated by the president and trial judge advocate. (See AW 33.) Such authentication can be made only by the president and trial judge advocate who were actually present at the trial. It must be noted that they are the persons who actually served in those capacities, that is, if the senior member of the court detailed in the order appointing the court wa:s absent during the trial, the next senior meJIlber who sat was the president and should authenticate as president, not as “a member in lieu of the president because of his absence,” and if the trial was conducted by the assistant trial judge advocate, he would authenticate as “trial judge advocate.” If, after trial, the persons who served in those capacities are unable to authenticate because of death, disability, or absence, the record will be signed by another member in lieu of the president and an assistant trial judge advocate in lieu of the trial judge advocate; otherwise by another member of the court. If someone other than the president or trial judge advocate authenticates, the reason must be stated. The form for authen­tication in such cases is set out in appendix 6, MOM. (See also app. 2,

this manual.)
f.
Service on accused. The record of trial will affirmativelyshow the personal receipt of the accused for a copy of the record if such copy was requested by him at the trial. (See app. 2, p. 194, infra.) Ifhis personal signature caimot be secured, a certificate of delivery by the officer delivering it (the trial judge advocate) to accused will be forwarded with the record. It is not proper for the defense counsel to sign a receipt on behalf of the accu.sed. If accused did not request a copy of the record, the extra copy will be forwarded with the original to the appointing authority.

g.
Correction. Until the record has been f1uthenticatedand forwarded to the reviewing authority, it is not complete and the president or trial

judge advocate is at liberty to correct. the transcript of proceedings to make it conform to the facts by erasure, interlineation or otherwise, initialing corrections made. Thereafter, however, any change or correc­tion must be made formally, not by interlineations, erasures or other physical change in the original. See in this connection paragraph 137, infTa, as to rev~sion proceedings and correction of records by certificate.
h. Forwarding. The record and accompanying papers with General Court-Martial Data Sheet (WD AGO Form 116) properly completed and signed (see note on 2d page of GOM Data Sheet as to questions that need not be answered) will be sent by the trial judge advocate by letter of transmittal to the reviewing authority. (See par. 850, MOM.)
129. SPECIAL COURT-MARTIAL CASES. a. Number of copies of record.
Only one copy of the record of a special court-martial trial need be made
(first note, app. 7, p. 271, MOM). The accused is not entitled to a copy
even though he demands it.
b.
Reporters. The appointment of a reporter for a special court-mar­tial is authorized only if the appointing authority directs that the testi­mony be reduced to writing (par. 46a, MOM). A provision for directing that the testimony be reduced to writing may be included in the order appointing the court (see app. 20, MOM). Ordinarily a summary of testimony will suffice without appointing or employing a reporter to record the testimony by question and answer as in the case of a general court-martial trial. It should be noted that there is no provision for paying an enlisted man for serving as reporter of a special court-martial. (See par. 2h, AR 35-4120, 30 July 1943.) . “­

c.
Form and contents. The form and contents of a special court-martial record are set out in appendix 7, MOM, and a specimen record may be found in appendix 3, this manual. Except as otherwise indicated, the requirements of paragraph 85, MOM, as to general court-martial records are applicable.

d.
Examination, authentication, and correction. What has been said as to examination by defense counsel, authentication, and correction of general court-martial records (par. 128d, e, and g, supm) applies equally to special court-!l1artial records.

e.
Forwarding to reviewing authority. After authentication the record will be sent by the trial judge advocate to the reviewing authority of the special court-martial who will take action thereon. (See ch. 18, infm.) After taking action, the reviewing authority will publish a special court-martial order promulgating the result of trial and his action thereon (par. 87d, MOM; AR 310-50, 1 December 1944; and ch. 19, this manual).

130. SUMMARY COURT-MARTIAL CASES. The record of trial by summary court-martial is the charge sheet itself (WD AGO Form 115), which is prepared in triplicate by the summary court officer. As to preparation
12’4
and forwarding of record by summary court officer, see appendix 8, MOM, and paragraph 64, supra. For a specimen form of record by summary court-martial, see appendix 4, infra. After completion of the record, the summary court officer will forward all three copies to the re­viewing authority who will take appropriate action and make proper disposition of them. (See par. 142a, infra.)
CHAPTER 18
ACTION ON PROCEEDINGS BY REVIEWING AUTHORITY

131. GENERAL. After a case has been completed and the record prepared,
•     the proceedings must be submitted to the “reviewing authority”-that is, the officer who appointed the court, or if there has been a change in com­mand, his successor. No sentence of court-martial can be carried into effect until the reviewing authority has personally approved it (AW 46). Up to that point, a sentence is simply a recommendation by the court. A finding of not guilty on any specification or charge, however, is final when announced by the court and cannot be changed or disapproved by the reviewing authority. Nevertheless, even in the case of an acquittal, the record of the proceedings must be transmitted to. him although he cannot take action by way of approval or disapproval of the result.
132. EXAMINATION OF RECORD. Before action is taken on a sentence the record must be examined to determine that the procedure was legally correct and that the findings and sentence of the court are lawful. Oases tried by general courts-martial are reviewed by the staff judge advocate, who must write a formal review of the case and specifically recommend the action to be taken. Normally there is no staff judge advocate in organizations having only special and summary court-martial jurisdic­tion and the officer who acts as reviewing authority of an inferior court­martial must, therefore, decide whether the record and sentence are legally sufficient and determine upon his action without the advice of a trained military lawyer. The review of a summary court-martial record, w~ich consists only of the charge sheet, is limited to checking whether the pleas, findings, sentence, and necessary remarks are properly recorded and whether the sentence is il, lawful one. A special court-martial record, however, contains a summary of the .evidence, and it is incumbent on the r~viewing authority to determine not merely that the proper procedural steps were taken and recorded, but that the findings of the court are supported by competent proof. In this connection he should consider the elements of proof required to establish the offense as set out in chapter XXVI, MOM, and decide whether those elements have been established by
proper evidence. (See ch. XXV, MOM, and ch. 14, of this manual.) He must then determine whether the sentence imposed is a legal one. (See ch. 16’, this manual for a discussion of sentences.) A check list of matters to be considered in reviewing a special court-martial record will be found in appendix 3, this manual. Having carefully examined the record to determine its validity, the reviewing authority must then decide what action he will take upon the sentence. The various courses of action open
. to him are discussed in the succeeding paragraphs.
133.
APPROVAL OF SENTENCE. Unless the whole or part of the sentence is expressly approved, the proceedings of the court have no legal effect. Approval does not indicate that the reviewing authority is satisfied with the sentence. He may regard it as grossly inadequate, but without approval of the sentence the finding of guilty as well as the sentence is without any force or effect. If the proceedings were valid and the sentence legal, the reviewing authority will approve the iSentence. If part of the sentence is unlawful, he should approve so much as is lawful and thereby make that portion effective. Thus, if a special court-martial sentenced an accused to be confined at hard labor for 7 months (which exceeds by 1 month the amount of confinement it has jurisdiction to impose), the reviewing authority would approve “only so much of the sentence 31,s· provides for confinement at hard labor for 6 months.” Similarly, if the sentence ~xceeded the amount authorized by the Table of Maximum Punishments, so much as was authorized would be approved. (For form of such action, see app. 21, iJnlra,,)

134.
DISAPPROVAL. The disapproval of a sentence makes it completely ineffective and places the accused in the same position as if he had been acquittea by the court. I:f the proceedings were entirely irregular, or the findings not warranted, or the sentence wholly illegal, the reviewing authority may wipe out the conviction by d~sapproving the sentence. Since an accused may not be tried twice for the same offense without his consent (AW 40), disapproval of a sentence, unless a rehearing is ordered by the same action, not only relieves the accused of the punish­ment imposed by the sentence, but renders him immune from ever being punished for that offense. An error in the course of proceedings is not sufficient ground for disapproving the sentence unless from an examina­tion of the entire proceedings it appears that the substantial rights of the accused were injured thereby (AW 37; par. 87b,MCM). If the pro­ceedings were regular.and the findings warranted but the sentence is excessive, the entire .sentence should not be disapproved. So much as is legal should be approved. (See par. 133, supra.) It is unnecessary to disapprove the illegal portion expressly. The reviewing authority should merely state that “only so much as” is legal is approved.

135.
APPROVAL AND DISAPPROVAL OF FINDINGS. It is only the sentence for which the reviewing authority’s approval is required. (See AW 46.) He need not take any action on the findings of the court. If the sentence is lawful, he will ordinarily state only that the sentence is approved,

without referring to the findings. If, however, the findings are not fully supported by the evidence, he may expressly disapprove those which are unwarranted. Thus, if an accused were found guilty of two specifica­tions under a charge and the finding as to the first specification was not supported by the evidence, that finding should be expressly disapproved. ” (See Form 3, app. 10, MOM.) In such case, it would not be necessary to approve expressly the finding of guilty of Specification 2 and of the Oharge. Similarly, if the evidence did not support all the facts alleged in the specification of which an accused were found guilty, only as. much of the finding as was warranted might be approved. For example, if a finding of guilty were made on a specification which alleged that the accused stole a watch of a value of $100 and the evidence showed that the watch was of a value of $5 only, the reviewing authority might approve only so much of the finding of guilty of the specification as involved a finding that the accused did at the time and place alleged steal a watch of the value of $5. If the court by exceptions and substi­tutions should have found the accused guilty only of a lesser included offense, but actually found him guilty as charged, the reviewing authority should approve only so mucl~ of the finding as involves a finding of guilty of a lesser included offense. (For foq:ns for such an action see Form 4, a.pp. 10, MOM, and app.21, this manual.) The reviewing
authority cannot disapprove a finding of not guilty, even if he deems it
unjustified (par. 87b, MOM) ; nor s~ould he approve such a finding.

136. REHEARING. If the reviewing authority determines that the find­ings were miwarranted or that errors were committed, he cannot approve the sentence. Yet he may be satisfied that the accused can legally be con­victed on a new trial and should not go unpunished. In such a case he may disapprove the sentence and order a rehearing before another court; The direction for a rehearing must be taken at the same time as, and be made a part of, his action in disapproving the sentence. (See par. 89 and Form 7, app. lOa, MOM.) It cannot be made later. Nor maya rehearing be ordered if any part of the sentence is approved (par. 89, MOM). The rehearing must be before a court composed of members who did not hear the original case (AW 50lh). It may be necessary, therefore, to appoint a new court composed entirely of different members to rehear the case unless another court is already in existence. The trial judge advocate and defense counsel who participated” in the original heari:p.g, however, are ordinarily retained in those positions on rehearing. The record of the original trial with action.of the reviewing authority disapproving the sentence and directing a rehearing are transmitted to the trial judge advocate of the new court, accompanied by a letter of any special instructions. Where, upon a rehearing, it is mad~ to appear
to the satisfaction of the court that a witness who has testified in either a Federal or a State court or before a court martial at a former trial
of the same person where the issues were the same as in the case on trial and where the accused was confronted with the witness and afforded the right of cross-examination, is dead, insane, or too old or infirm to attend the trial, or is beyond the reach of process, or more than 100 miles from the place where the trial is had, or cannot be found, his testimony at the former trial, if properly proved, may be received by the court if other­wise admissible, except that such testimony of an absent witness may not be introduced in evidence in a capital case without the consent of the accused unless the witness is dead or beyond the reach of process. A new indorsement referring the charges for a rehearing is pasted or stapled over the indorsement on the original charge sheet. On rehear­ing the case is fully tried anew, the procedure being the same as on the original hearing. The court may not find the accused guilty _of any offense of which he was found not guilty on the first hearing nor impose a more severe sentence than was originally adjudged. Thus, if an ac­cused charged of larceny in violation of AW 93 was originally found guilty only of wrongful taking in violation of AW 96 and sentenced to confinement at hard labor for 3 months and forfeiture of two-thirds of his pay per month for a like period, on rehearing the court could not find him guilty of larceny nor sentence him to a greater punishment than was originally imposed. A rehearing is appropriate if the errors on the· original trial were so substantial as to render the sentence illegal and if it is probable that these errors can be avoided at a new trial, or
if the prosecution failed to establish all elements of the particular of­fense by competent proof and such proof is available for a rehearing.
137. CORRECTION OF THE RECORD AND REVISION. a. Certificate of cor­rection. The record may be incomplete or defective in some important respect, such as the omission of a finding on a charge, or absence of a statement as to the sentence, or failure to show that the members of the court were sworn or that the required number of members concurred in the vote on the findings and sentence. A sentence based on such a record cannot be approved. Such defects, however, may be due simply to clerical errors or carelessness in preparing the record. The court, in fact, may have been sworn, or arrived at its findings or sentence by.the proper vote or made all required findings, but the record may not correctly show the facts. Ifsuch is the case, the record must be corrected to speak the truth. Such correction cannot be made by physical changes in the record through alterations, erasures, or interlineations. It must be made formally. In .case of such clerical errors or omissions, before the reviewing authority takes action, the record may be returned to the president of the court, or to the summary court officer in cases tried by summary court, for a cer­tificate as to the matters which appear to have been omitted or incorrectly stated (par. 87b, MOM). This certificate will be signed by the officers who authenticated the record or, in summary court-martial cases, by the sum­
mary court officer. A form for indorsement returning a record of trial by special court-martial for correction is set out in appendix 18, infra, and a form for a certificate of correction is contained in appendix 19, infra. In general court-martial cases, if the accused has been furnished a copy of the record, he must be also furnished a copy of the certificate and his :receipt therefor or a certificate of delivery should be signed on the face of the original certificate, otherwise the extra copy of the certificate will be forwarded with the unclaimed copy of the record. In special and summary court-martial cases it is not necessary to furnish a copy of the certificate to the accused since he is not entitled to a copy of the record itself. A certificate of correction merely makes the record correspond to what actually happened at the trial. It cannot change the facts. If the court was not sworn, for example, that defect cannot be remedied by a certificate.
b. Revision proceedings. (1) If the record discloses erroneous action by the court in making its findings and sentence which is capable of being corrected, the record may be returned so that the court may revise its action before the :reviewing authority acts on the sentence. Such revision of the record is not a new trial or rehearing. No new evidence ni.ay be taken, nor witnesses called, nor additional matters considered. The court may reconsider its action on the findings or sentence in question, and either :revoke its old action and correct it or decline to make a change. For example, if the court considered improper evidence of previous con­victionsindetermining the sentence, the record might be returned so that it could reconsider its sentence disregarding the improper evidence (par. 87b, MOM). Or, if the court erroneously failed to impose any sentence at all, or imposed an illegal sentence, it might revise its action by now adjudging a sentence or revoking its old sentence and imposing a new and legal one; AW 40 specifically prohibits reconsideration of an acquittal or of a finding of not guilty on a specification or charge, or any increase in the severity of the sentence, unless the sentence was less than the mandatory sente!1ce required by law. Thus, a court which had found an accused not guilty of desertion, but guilty only of the lesser included offense of absence without leave, could not on revision proceedings change its finding to one of guilty of desertion. Similarly, a court could not by revision increase a sentence of confinement at hard ·labor for 3 months to a sentence· of confinement at hard labor for 3 months and forfeiture of two-thirds pay per month for a like period. A court, however, which
had failed to impose the mandatory sentence of dismissal upon an officer convicted of a violation of AW 95, could r~voke its original illegal sen-‘ tence and adjudge the dismissal which the law requires. Errors which occurred in the course of trial, such as failure to swear the court or wit­nesses, improper rulings on challenges, or admission of improper evidence cannot be corrected by revision proceedings after the trial is completed.
(2) 1£ the case is a proper one for revision of the findings or sentence, the reviewing authority will return the record to the trial judge advo­cate of the general or special court-martial with directions to have the court reassemble and reconsider the finding or sentence in the particular specified with a view to correcting the defect. This is usually done by an indorsement on the letter by which the record was transmitted to the reviewing authority or, in the case of a special court-martiaJ where the record may not have been transmitted by letter, the directions, may be communicated to the trial judge advocate orally or by original letter. (See app. 20, infra.) Only members of the court who were present at the trial can participate. If the necessary quorum of those members (i. e., five for a general court-martial; three for a special court-martial) cannot be obtained, no revision is possible. The accused and defense counsel are not present since no new matters can be considered. The trial judge advocate will read the directions of the reviewing authority to the court and the court will then close for, deliberation and voting. The pro­ceedings on revision will be formally recorded and forwarded for attach­ment to the original record. The form for the record of such proceedings is set out in appendix 6, pp. 269, 270, MOM. If there is occasion for revision in a case tried by summary court martial, the record will be returned to the summary court officer with similar directions.
‘138. REMISSION AND MITIGATION. a. General. Although a sentence
may be a legal and proper one for the offense of which the accused has
been found guilty, for reasons of policy the reviewing authority may
wish the accused to be less severely punished. 1£, for example, the
accused had been confined for an undue length of time before trial, or
there were extenuating circumstances, such as his youth, drunkenness at the time of the offense, or ignorance of his duties, or the court recom­mended clemency, it might be desirable to make the punishment less severe. If the reviewing authority decided on this course of action, he could approve the sentence and then remit or mitigate it-i. e., relieve the accused of all or part of the punishment by reducing it in quantity or quality (par. 87b, MOM). Such action by the reviewing authority does not destroy the effect of the conviction as does disapproval of the sentence. The record of the conviction stands, but the accused does not have to up.dergo that part of the punishment which is remitted or miti­gated. It is essential that the reviewing authority expressly approve the ,sentence and then reduce it. Until approved the sentence has no legal
effect and there is nothing to be reduced.
b. Reduction in quantity. In such aease as of a sentence of confinement at hard labor for 6 months and forfeiture of $33 per month for a like period, (he reviewing authority might approve the sentence and remit it in its entirety (in which case the accused would undergo no punish­ment); or he might remit all or part of the confinement (leaving the
632260°–45—-10
entire forfeiture in effect) ; or he might remit part of both the confine­ment and forfeiture. For a form for such action, see Form 2, appendix 10, MCM. (See also app. 2, this manual.)
c. Reduction in quality. Instead of cutting down the quantity of the punishment by remitting all or part of it, the reviewing authority may “mitigate” the punishment-i. e., reduce it to a less severe degree-of the same general type of punishment (par. 87b, MCM.) For example,
_confinement at hard labor and restriction to the limits are both forms of restraint on liberty, the latter being a less severe type of restraint. A sentence to confinement at hard labor for 1 month, therefore, could be reduced to restriction to the limits for the same 01′ a shorter period, since the general nature of the punishment is not thereby changed but there is simply a reduction in the degree of that punishment. Similarly,. confinement at hard labor and hard labor without confinement are both forms of hard labor, the latter being less severe. Therefore, a sentence to confinement at hard labor for 1 month could be reduced to hard labor without confinement jor the same or’ a shorter p”eriorl (par. 87b, MCM). For an example of such action see appendix 31, this manual. Although the severity of the punishment may be th$ mitigated, the reviewing authority may not change its general nature. He could not, for example, change confinement to forfeiture, nor change forfeiture to restriction. Only the President and certain commanding officers authorized by him under AW 50 may “commute” the sentence-i. e., change its general nature.
d. Limitations. The punishment as reduced by the reviewing authority must be included in the sentence actually adjudged by the court. For example, confinement at hard labor for 1 month c~nnot be reduced to restriction to the limits for 2 months, since the original sentence provides for only 1 month’s punishment. The punishment a,s reduced must also be one which the court itself could have imposed in the first place. Thus, a sentence of confinement at hard labor for 6 months cannot be reduced by the reviewing authority to restriction to the limits for 6 months or to hard labor without confinement for 6 months, since the court itself could not have imposed more than 3 months of restriction (par. 103f, MCM) or of hard labor without confinement. (See par. 103i, MCM.) Nor, for example, in the case of a sentence of dishonorable discharge, total forfeitures and confinement at hard labor for 1 year, could the reviewing·authority remit the dishonorable discharge leaving the total forfeitures and the confinement at hard labor in effect, since the court itself could not have imposed such punishment without also adjudging a dishonorable discharge. (See par. 1040, MCM.)
139. EXECUTION AND SUSPENSION. In addition to expressly approving the sentence the reviewing authority must order it “executed”-i. e., put into effect-if the accused is to undergo the punishment imposed. Except
for certain sentences adjudged by general courts martial (i. e.,. those
which require confirmation under AW 48 or examination for legal
sufficiency by the Board of ~eview and The Judge Advocate General
under AW 50%) all sentences may be ordered executed by the reviewing
authority as soon as he has approved them. In his action on the
sentence, therefore, he will usually order execution of the sentence.
Instead of ordering the sentence immediately put into effect, he may
“suspend” the execution of all or part of it, in much the same way as a
judge in a criminal court sentences an offender and then puts’him on
probation. The accused is thus given an opportunity to redeem himself.
1£ he does so, he may never undergo the punishment. 1£ he does not,
the suspension may be “vacated”-i. e., the sentence may be put into
effect. (See app. 28, infra.) Suspension differs from remission in that a
suspended sentence may later be ordered executed, whereas by remission
the accused is completely relieved of the punishment for all time.
140. FORM OF REVIEWING AUTHORITY’S ACTION~ After the reviewing authority has decided what disposition he intends to make of the case, his action must be written and signed by him. In summary court-martial cases, it is placed on page 4 of the charge sheet. (See app. 4, infra.) In general and special court-martial cases it is written on a separate sheet of paper to be attached to the record of trial. (See apps. 2, p. 165, and 3, p. 225, infra.) The heading of the action must show the headquarters of the reviewing authority and the place and date of action. In preparing the body of the action itself, the suggested forms set out in appendix 10, MOM, should be carefully followed. They cover almost all situations, and al­though in a rare case it may be necessary to make some slight modification, adherence to the forms should be the rule. Attempts to devise a new or un­usual type of action may result in rendering the entire action illegal or ineffective. It will be noted that the appropriate forms of action in sum­mary court-martial cases (appendix 10c, MOM) ,are brief and concise. The action in general and special court-martialcases should specifically state the grade, name, serial number, and organization of the accused­
e. g., “In the foregoing case of Private John M.Rentland,36126705, Serv­ice Battery, 359th Field Artillery Battalion.” The action must be signed by the reviewing authority in his own hand. Under his signature must be typed his name, rank, branch of service, and the word “Oommanding.” The latter word must appear, since it is only the c.9mmanding officer of an
organization who has authority to act on a sentence.
141. COMPLETION, ARRANGEMENT, AND DISPOSITION OF RECORD. a. In summary court-martial cases. Each case will be numbered serially’ by the regimental or other unit adjutant on page 4 of the charge sheet (par. 82, MOM). It is customary to begin a new series each year starting with’ number 1. After the reviewing authority has recorded his action on
page 4, the original and the two copies will be delivered to the regimental or other unit personnel officer, who will, in the case of an approved sen­tence, enter the essential data on the servjce record of the accused and indicate that he has made such entry by initialing in the space provided on page 4. The original record will be filed in the office of the regimental or other unit commanding officer (par. 87c, MCM). The two copies (referred to as reports of trial) are then forwarded as follows: one copy, completed and certified as a true copy of the original, will be immediately forwarded to The Adjutant General, Washington, D. C., and the remain­ing copy will be sent to the officer exercising general court-martial juris­diction. (See par. 47, TM 12-230, and par. 87c, MCM.) These provisions with respect to the disposition of reports of trial by summary court apply to trials of civilians by summary court. In civilian cases it is advisable to forward also a copy of the informal investigation, if any. The report of trial forwarded to the officer exercising general court-martial jurisdic­tion is examined by his staff judge advocate for errors, defects or omis­sions (par. 91,MCM). If any are found, the report may be returned with directions to take corrective or modifying action.
b. In special court-martial cases. After the reviewing authority has taken and recorded his action, a special court-martial order setting out the result of trial and the action taken on the sentence must be prepared. (The preparation and distribution of such orders are discussed in chapter 19, infra.) The record will then be arranged from top to bottom in the following order:
(1)
Special court-martial check sheet (if check sheet is used) .

(2)
Two copies of the special court-martial order.

(3)
Any special court-martial orders suspending, remitting, or miti­gating the sentence.

(4)
Record of trial proper.

(5)
Action of the reviewing authority.

(6)
Exhibits in the following order:

(a)
Special order appointing the court and any amendatory order or orders, to be marked Exhibit 1, la, etc.

(b)
Charge Sheet to be marked Exhibit 2.

(c)
Any other exhibits introduced at the trial, properly numbered or lettered, followed by record of previous convictions, if any, properly numbered as an exhibit. Prosecution’s exhibits will be numbered. De­fense exhibits will be lettered.

(d)
Report of investigation, if any.

(e)
Authorization by officer exercising general court-martial jurisdic­tion for trial of particular case by special court-martial, if any. (See pars. 38c, 58b, 59a, supra.) An example of a completed special court­martial record is set out in appendix 3, infra.. The record and accompany­ing papers thus arranged will be forwarded to the officer exercising general court-martial jurisdiction over the command (par. 87e, MCM). The rec­

ord will there be examined by the staff judge advocate for errors, defects, and omissions (par. 91, MCM). If any are discovered, corrective or modifying action may be taken by the officer exercising general court­martial jurisdiction or he may return the record with directions that such action be taken by the reviewing authority. The record if found satisfactory, or after corrective action, is filed in the staff judge advocate’s office.
c. General court-martial records. After the reviewing authority has taken action, his staff judge advocate will have a general court-martial order issued, complete the additional necessary papers (i. e., the chron­ology sheet and the court-martial data sheet) and forward the record to the office of The Judge Advocate General. A discussion of the types of review of general court-martial records in the office of The Judge Advocate General is beyond the scope of this manual.
142. SUBSEQUENT ACTION ON SEN1ENCES. a. What action may be taken. Once the reviewing authority has taken final action on a sentence and that action has been published in a court-martial order, or the ac­cused has been notified of it, the action is final and cannot be changed or revoked (par. 87b, MCM) unless the original action was void. Thus, if a reviewing. authority approved and ordered executed a sentence of for£eitur~ adjudged by sp~cial court-martial and the special court-martial order were published, it would be too late to recall or rescind his ap­proval. The forfeiture has become legally effective and must be collected. Any amount forfeited can be repaid to the accused.only by act of Con­gress. (See par. 10j, AR 35-2460, 21 May 1942.) However, so much of a sentence as has not already been carried out may be remitted or miti­gated or suspew1ed (AW 50; AW 52). For example, if an accused had served 2 months of a sentence to confinement at hard labor for 3 months, the remaining 1 month of the confinement might be remitted, or miti­gated to restriction to the limits or hard labor without confinement, or suspended. (See par. 17d, AR 600-375, 17 May 1943.) Similarly, the uncollected portion of a sentence of forfeiture might be remitted ormiti­gated or suspended. (See par. 10, AR 35-2460, 21 May 1942.) If originally a sentence was not ordered executed but was suspended, the suspension may be “vacated” and the sentence put into eff’ect at any time during the accused’s teI~m of enlistment or service (par. 94, MCM).
b. Who may take action. Subsequent action of the type j.ust described may be taken by the officer who has power to appoint a court of the kind which imposed the sentence for the command in which the person under sentence is held (A\V 50; AW 52). For example, such action might be taken on a sentence adjudged by summary court by the officer who has summary court-martial jurisdiction over the organization of accused, e. g., the regimental commander, and by any superior military authority. Thus, if the regimental commander of the 430th Infantry
approved a sentence of a special court-martial and ordered it executed, he could remit, mitigate, or ‘suspend the balance of the sentence so long as the accused was in the 430th Infantry, since he would he the· officer who had power to appoint a cour.t of the kind which adjudged the sentence (i. e., a ~pecial court-martial) for the command in which the accused is held (i. e., the 430th Infantry). However, if the accused were transferred from the 430th Infantry to the 121st Infantry before the sentence had been completed the commanding o:ffiicer of the latter organi­zation (who has power to appoint special courts-martial) could remit, mitigate, and suspend the balance of that sentence and the commander of the 430th Infantry would no longer have authority to take such action. Garrison prisoners confined in a post guardhouse are still carried on the rolls of their original organization and, although their sentences may be remitted or suspended by the commander of the post, they should not as a matter of policy be remitted ‘or suspended without the express con­currence of the authority who approved the sentence.
c.
How accomplished. It is unnecessary for the authority remitting, mitigating, or suspending the balance of a sentence or vacating a suspen­sion to sign personally any action effecting that result. All that is necessary is the publication of an order setting out the action taken. In general and special court-martial cases, any such action will be pub­lished in appropriate general and special court-martial orders (par. 94,

p.
83, MOM). (See apps. 26 through 28, infra, for forms.) Distribution of such orders is covered by paragraphs 3d (3) and (4), AR 310-50, 1 De­cember 1944. In 81JJJ111tnary court-martial cases such action will be pub­lished in a paragraph of the organization’s special orders (apps. 29 and 30, infra) notin a court-martial order.

d.
Restoration of garrison prisoners to duty. Garrison prisoners who are members of organizations under orders for oversea assignments should be released to the custody of their organizations in time to accompany them and the commanding officers of such organizations should consider the advisability of remitting (absolutely or conditionally), mitigating, or suspending the unexecuted portion of the sentence being served by such prisoners. .

CHAPTER 19
COURT-MARTIAL ORDERS

143.
PUBLISHING RESUL. OF TRIAL. . court-martial order settil1g out the result of the trial al1d the reviewing authority’s :final action thereon must .. published in every case tried .. . general 01′ special court-martial (..r. 87d, …; AR 310-50, 1 December 1944). This requiremel1t ..­plies whetller the accused l.s been found guilty 01′ acquitted. The order i11 cases tried .. . ge11eral court-martial will .. desig.ated . Ge11eral Court-Martial Order; i11 cases tried .. . special court-martial it will .. desig.ated . Special …,t-..rti.l Order. No order is published i11 cases tried .. summ… court-martial, as there is 110 such thi11g as . “Summary ..urt-…ti.l Order.” .

144.
PREPARATION. Si11ce the cou.t-martial .rd.’ is .11 official record .! the ..sults of the triaJ a11d of the pUl1ishme11t that has been imposed, its careful preparation is . matter of great importance. It is the author­ity u11del’ which . priso11 ….. keeps an accused in con:fi11ement a11d . fi11a11ce ….r withholds the amou11t of . f..f.itur. from his …. It is the basis 011 which e11tries of convictio11S .r. made i11 his service record. It is proof of his i11110ce.ce if he was acquitted. Eve11 slight mistakes i11 it … have i11jurious effects upon the rights of .11 accused, so it must .. complete a11d scrupulously accurate. Ge11eral court-martial orders .r. normally drafted .. the staff judge advocate a11d for that reaS011 matters peculiar to such orders will not .. discussed. The …..r.ti.n of special court-martial orders, however, is the respo11sibility of the adjuta11t of the comma11d. .. must k110W what is to .. i11cluded. . form for . spe­cial court-martial order is set out in appe11dix .., .. 278, …, a11d othel’ examples will .. fOU11d i11 appe11dices 26 through 28, this ma11ual. … mistakes which .r. commonly made in the preparation of such orders .r. usually due to carelessness a11d failure to check the record and the order carefully. Attention should .. paid to the followi11g matters which .r. common sources of .rr.r in preparing special court-martial orders:

.. Headquarters. … co.rect desig.ation of the headquarters of the reviewi11g authority must .. shown. This should .. copied from the action sheet.
b.
Date. The order, no matter when actually published, will bear the
date on wg.ich the reviewing authority took final action-i. e., the date
will correspond with that on the action sheet. Thus, if on 1.May a
regimental commander approved and ordered executed a sentence of a
special court-martial, but the adjutant of the regiment did not have the
order mimeographed until 3 May, the order would nevertheless be dated
1 May.
c.
Numbering. Each special caurt-martial order issued by an organi­zation is numbered consecutively in a separate series for each calendar year. (See AR 310-50, 1 December 1944.) The last order issued in any calendar year should bear a notation that it is the last of the series for that year, and the first of the next calendar year should bear a nota­tion at the top to the effect that “SCMO No. –is the last of the series of 194-” (the preceding year). If it is necessary to issue a corrected copy, it will be labeled “Corrected Copy” and be given the same number and date as the order it corrects.

d.
Orders appointing the court. The paragraph, number, date and issuing headquarters or the special order which appointed the court and of all amendinrJ or¢er8 must be stated.

e.
Description of accused. The name, organization and serial number of the accused must be accurately set forth and correspond with those appearing on page 1 of the charge sheet. Particular care should be taken to insure that the serial number is stated correctly.

f.
Charges and specifications. The charges and specifications must be copied exactly as they appear on the charge sheet, unless they were amended in the course of the trial. If amended, they must be set out as they read after amendment. If a charge or specification was nolle prossed or withdrawn by the appointing authority, it should not be copied in full, but its number should be given followed by the words “Nolle prosequi by order of the appointing authority” or “Withdrawn by order of the appointing authority.” (See app. 22, infra.)

g.
Pleas. The pleas must be copied exactly from the record. If a plea of guilty was changed to not guilty at any stage of the proceedings, it should be set forth as “Guilty changed to Not Guilty.”

h.
Findings and sentence. The findings and sentence must be copied exactly as they appear in the record.

i.
Previous convictions. If evidence of previous convictions of the accused was considered by the court, that fact must be stated. This statement is set out in parentheses after the statement of the sentence­

e.
g., “(Two previous convictions considered).” II no evidence of previ­ous convictions was considered, a positive statement to that effect is not required, since if nothing is said it is assumed that there were no such convictions. It is good practice, however, to state specifically ” (No previous convictions considered) ,” if such was the case, because it would

138
/
I
remove any question of the reference to previous convictions havinG” been omitted through inadvertence.
I::>
j.
Date of sentence or acquittal. The date on which the acquittal was announced or sentence was adjudged must be stated. This date is impor­tant since the date on which the sentence was adjudged fixes the time from which the term of confinement begins to run. (See par. 17b, AR 600-375, 17 May 1943.)

k.
Action. The reviewing authority’s action on the sentence, omitting

“In the foregoing case of ,” is copied from the action sheet. Any reprimand imposed by the reviewing authority must be set out in full. (See par. 3a, AR 310-50, 1 December 1944.)
I. Authentication. The order must be properly authenticated as pro­vided in paragraph 11, AR 310-50, 1 December 1944. ”
m.
Acquittal. A form for a court-martial order in case of an acquittal will be found in appendix 23, infra.

n.
Joint and common trials. In the case of a joint trial, a sin”gle order is issued, but the findings and sentence as to each accused are separately stated. (See app. 24, infra.) In the case of’ a (Jommon trial, separate orders should be issued for each accused.

o.
Rehearing. In t~e case of a rehearing, neither the original proceed­ings of the court nor the action of the reviewing authority thereon will be published in the court-martial order (par. 87d, MCM). The order will promulgate only the proceedings on rehearing with the action of the reviewing authority thereon. However, if some of the original charges and specifications were not referred for rehearing, they should be set out in a separate paragraph in the· order together with the action of the court and the reviewing authority thereon (par. 87d, MCM). Thus, for example, if an accused were convicted on two charges and acquitted on a third charge, and the reviewing authority referred for rehearing the two charges on which he was convicted, and on rehearing he was again convicted on those two charges, the court-martial order should set out not only the court’s findings and sentence upon the rehearing and the review­

ing authority’s action on those two charges, but also the fact that the accused was acquitted on the third charge.
145. DISTRIBUTION. Army regulations do not prescribe the distribution to be made of special court-martial orders beyond the requirement that three copies for each accused be sent to The Adjutant General, Attention: Enlisted Branch, Washington, D. C.; one copy (in trials on charges of desertion only) to the Fiscal Director; and copies to the prison officer of the place where the accused is confined. In addition, two copies should be attached to the record of trial when it is forwarded to the officer exer­cising general court-martial jurisdiction. Although no other distribution is required, it is customary to send a copy to the President, trial judge advocate and defense counsel, to the immediate commandin”g officer of the accused and to the finance officer of the organization. An example of the distribution which may he made is set out in appendix 25, infra.
146. COURT-MARTIAL ORDERS REMITTING OR SUSPENDING SENTENCES, OR VACATING SUSPENSIONS. When in a general or special court-martial case it is desired to remit or suspend the balance of a sentence which has been ordered executed, or to vacate a suspension of a sentence (ch. 1’8, supra), such action is taken by issuing a court-martial order. Forms for such orders in special court-martial cases are set out in appendices 26 through 28, infra. If such action is taken in a case tried by summary court-martial, it must be done in the organization’s spemal orders, not by court-martial order. Appropriate forms for a paragraph in a special order remitting ~he balance of a sentence imposed by summary court­martial, setting aside such a sentence or vacating a suspension will be found in appendixes 29 and 30.
LIST OF APPENDICES
Text refer­App.
PageTitle ence (para­No.
graph)
1

Procedure Outline for Trials before General and
Special Courts-Martial, U. S. Army

_
143
2

Record of Trial by General Court-Martial and Ac­companying Papers:

158
Chronology Sheet_ __________________________ 141c

161
General Court-Martial Data Sheet_ ___________ 141c

162
General Court-Martial Order________ ______ ___ 143

164
Staff Judge Advocate’s Review________________ 132

166
Charge Sheet_______________________________ 26

171
Pretrial Investigating Officer’s Report-________ 47

177
Letter of Transmittal, Court-Martial Charges___ 31

175
Indorsements Referring Charges for Investi­gation and Returning Report of Investigation_ 38a, 48b

176
Indorsement Recommending Trial by General
Court-Martial ____________________________ 38b

170
Accuser’s Summary of Evidence_______________ 30

186
Staff Judge Advocate’s Recommendation as to
Disposition of Charges_ ____________________ 38d

187 .
Voucher for Reporter’s Services_ ______________ 128b

188
Statement of Personal Services by Reporter _ 190
Indorsement by Trial Judge Advocate Trans_
mitting Record of TriaL ________________ 12ge

192
Record of Trial Proper:

Index _
193
Receipt of Accused for Copy of Record_ ___ 128b

194
Special Order Appointing General Court-
Martial______________________________ 55a, b

195
Special Order Amending Order Appointing
Court________________________________ 55c

196
Transcript of Testimony _

197
Action of Reviewing Authority________________ 140

213
Extract Copy of MornIng Report (Exhibit 1) ___ 98d

214
Extract Copy of Guard Report (Exhibit 2) _

215
Record of Previous Convictions_ ______________ 29

216
3

Record of Trial by Special Court-Martial and Ac­companying Papers_ _____ ______ __ _______ _ 141b

217

Cover Sheet _
218

Check Sheet _
219

Chronology Sheet _
220
Special Court-Martial Order__________________ 143

221

141: LIST OF APPENDICES-Continued
App. No.  Title  Text refer­ence (para­graph)  Page

Record of Trial Proper  —-­
Action of Reviewing Authority__ ~_____________  140  226
Special Order Appointing Special Court-MartiaL ChargeSheet ~_________________________  55 a, b 26  227 228
Confession of Accused (Exhibit 5) _____________  95, 96c(1)  234
Record of Previous Convictions_ ______________  29  235

129
4 5
6 7
8
9
10
11
12
13
14
15
16
17
18
19 20
21
22 23 24 25 26
27
28
Report of Trial by Summary Court-MartiaL _______
Imposition of Punishment under AW 104 upon
Oflicer_______________________________________ Record of Punishment under AW 104______________ Specifications for Wrongful Taking and Conversion
under AW 96_ ________________________________ Lesser Included Offenses_________________________ Special Order Appointing Summary Court-MartiaL _
Notice by TJA of Convening of Court_____________ Stipulation as to Facts___________________________ Stipulation as to Expected Testimony_____________ Deposition by Civilian Witness_ __________________ Subpoena for Civilian Witness____________________ Report of Result of Trial by Trial Judge Advocate__ __ Voucher for Fees and Mileage of Civilian Witness_____ Weekly Report of Trial Judge Advocate_ __________ Indorsement Returning Record of Trial by Special
Court-Martial for Certificate of Correction_ ___ ___ Certificate of Correction ~ “___ _ Indorsement Returning Record of Trial by Special Court-Martial for Proceedings in Revision____ ____ Action of Reviewing Authority Approving Part of Findings and Sentence_ ________________________
Special Court-Martial Order______________________ Special Court-Martial Order-AcquittaL__ _________ Special Court-Martial Order-Joint TriaL _________
Distribution List of Special Court-Martial Orders_ ___ Special Court-Martial Order Remitting -Unexecuted Portion of Sentence____________________________ Special Court-Martial Order Suspending Unexecuted Portion of Sentence____________________________ Special Court-Martial Order Vacating Suspension of Sentence “__________
29 Special Order Remitting Sentence of Summary Court-MartiaL __”_ ____________________________
30 Special Order Vacating Void Sentence of Summary Court-MarFiaL_______________________________ 31 Action of Reviewing Authority Mitigating Sentence_
130
15b 16
106 55a, b
68b 68b 68c 68e 71a 71c 72
137a 137a
137b
133, 135 143,144 144m 144n 145
142c, 146
142c, 146
142c, 146
142c, 146
142c, 146 138c
236
240 242
243 244 248
249
250
251
252
256
258
259
261
262 263
264
265 266 268 269 271
272
273
274
275
276 277
APPENDIX 1
PROCEDURE OUTLINE FOR TRIALS BEFORE GENERAL AND
SPECIAL COURTS-MARTIAL, U. S. ARMY

The president is seated with the law member (if present) on his immediate left. The remaining members are seated alternately to the right and left of the president in order of seniority. When the court is ready, th~ trial proceeds substanti~lly as follows:
PRES:     The court will come to order.
TJA:     The prosecution is ready to proceed with the trial of the United States against (Name, rank, and organization of accused as read from the charge sheet).
At this point the accused, assistant TJA, if any, and counsel for the defense rise and remain standing until the choice of the counsel has been announced.
TJA:     The accuse.a is present, together ~vith the regularly appointed
defense counsel and assistant defen8ecounsel. TJA: W hom does the accused desire to int1’oduce as counsel? DO: .The regularly appointed defense counsel.
or
“The accused desires to introduce as individual counsel (state who he is).” In this event, the TJA should ask the accused if he wishes to retain the services of the defense counsel and the assistant defense counsel. The President of the court should excUse counsel not desired by the ac­cllsed. Reference military and civilian defense counsel, AW 17; MOM, par. 45.
All except the TJA here resume their seats.
*TJA:     The reporter will be sworn.
The reporter rises and raises his right hand. The TJA raises his own right hand, faces the reporter, and admin­isters the following oath: ..
*Indicates not applicable to special courts-martial trials whenever used in this outline.
App.l
You (name of reporter) swear (or affirm) that you will faith­fully perform the duties of reporter to this court. So help
-you God.
On affirmation omit last sentence.
*Reporter: I do.

The reporter now sits down and thereafter is not required to rise until the oath is administered to the court and the TJA, after which he resumes his seat and remains seated throughout the trial.
*TJA: (To accused) (Private ), do you want a copy of the record of your trial.’!
*DC: He does (not). TJA: (The interpreter will be sworn.) The interpreter (if any) may either be sworn at this time or just before he is used. When sworn, he rises; the TJ A facing him repeats the
following oath: You (name of interpreter) swear (or affirm) that you will truly interpret in the case nQw in hearing. So help you God.
On affirmation omit last sentence.
At this point the accused, assistant TJA and counsel for the defense stand and remain standing until the names of the members present and absent are announced.
TJA: The followinq members of the court appointed by paraqraph —, Special Orders, No. —, Headquarters —-­dated (As amended by paragraph , S pedal Orders , dated ) ar’e present: (–) The TJ A announces by name and rank the members present, including personnel of the prosecution and defense.
At the first meeting of the court the TJA may read the order appointing the court; if the original court order is amended, he may read this amended order to the court at its first meeting after the amendment is publisped.
TJA: Absent:
Announce by name the members absent including per­sonnel of the prosecution and defense, and the reasons for said absence.
A proper way of announcing the name of an absentee and the reason for his absence is as follows: “Absent, Major Jones (sick in hos:pital), (by verbal authority of the ap­pointing authority), (on leave of absence), (reason un­known) .”
All except the TJA now resume their seats.
TJA:

TJA:
TJA:

App.l
The general nature of the oharges in this case is (1) _.–_ ___; the charges were preferred by (2) ;
forwarded by (3) ; and were ilnvestigated by _______; and no member of the cmtrt will be a wit­ness for the prosecution. The records in this case disclose (no grounds for challenge) (grounds for the challenge of ), for the following reason: he (is the accuser, was the investigat­ing offioer, forwarded the oharges as commanding offWer, will be a witness for the prosecution) (4).
(1)
/Merely give the common name of the offense or offenses charged, e. g., “desertion and sleeping on post.”

(2)
The name of the person signing the charge sheet.

(3)
The name of the officer who actually forwards the charges to the appointing authority, as for example, a regi­mental commander or a detachment commander whose or­ganization has several companies or batteries.

(4)
If disclosed grounds of challenge are undisputed and are within the first five grounds enumerated in Par. 5’8e, the president will forthwith excuse the member by ruling in substance: ” is excused and will withdraw.” If there are challenges on grounds other than grounds 1-5, MCM, par. 58e, the procedure outlined in’ MCM, par. 58/, will be followed.

The· court need not rearrange itself after each member is excused but will do so after all the challenges have been acted upon.
Whether or not he discloses any grounds of challenge, the TJA will state:
If any member of the court is aware of any facts whioh he be­
lieves to be a ground for challenge by either side against. any
member,it is 1’equested that he state such facts.
The prosecution (has no) challenges (——–+—­for cause on the ground ).

The TJA should challenge for cause any member whom he believes to be ineligible to sit and in doing so the cause must be stated. The challenged member will be given the right to make a statement to this challenge, and if it appears that the m:ember should be excused the president may ex­cuse him subject to the objection of any member. In case of an objection by any member, or the DC, evidence may be presented to the court in an effort to uphold or overrule the challenge. In the event of a doubtful challenge, the challenged member should withq.raw and the court should be closed. Voting should be by secret written ballot and a majority of votes is necessary to sustain the challenge.
Challenges for cause ordinarily should be made before arraignment but may be presented at any stage of the pro­
145
App.l
TJA :
TJA: DC:
T.TA:
DC:
TJA: DC :
TJA:

ceedings, if the challenger has exercised due diligence or the challenge is based upon grounds as enumerated in clauses 1-5, MCM, par. 58e. Challenges for cause may again be presented, even though once overruled, if for good cause, such as newly discovered evidence.
The trial judge advocate will administer to a challenged member who is to be examined under oath as to his compe­tency the following oath: .
“You swear (or affirm) that you will true answer make to questions touching your competency as a member of the the court in this case. So help you God.”
The prosecution (has no peremptory clwllenge) desires to chal­lenge peremptorily (name of member).
The prosecution is allowed one peremptory challenge which may be exercised against any member of the court at this time, except the law member. The law member can only be challenged for cause.
Does the accused desire to challenge any member of the ()()urt
for cause’?
(No) Yes, the defense challenges (name of member) for cause.
(Cause should be stated.)

Does the accused wish to exercise his right to one perernptory challenge, against any member except the law member?
The defense (has no) challenges (Name of member) peremptorily.
The accused exercises his right to challenge for cause and peremptorily in the same manner as the prosecution.
In a joint trial all the accused constitute the “side” of the defense and are entitled to but one peremptory challenge. MCM, par, 58d. In a common trial each accused is entitled to a peremptory challenge.
Does the accused object to being tried by any member of the oourt now presentf
(No) (The defense challenges, etc.)
, If the accused has any further objections they must be stated in the form of a challenge and the necessary action taken as previously indicated. The question by the TJA is repeated until the accused is finally able to answer in the negative.
The seating of the court will be rearranged if made neces­sary as a result of challenges.
The CO”lJJrt will be sworn.
All persons in the court room rise and stand until the swearing of the court and of the TJA (and Asst.) is com­
App~1
pleted. Each member raises his hand as his name is called by the TJA in administering the following oath: You, il1ajor , Oaptain ,1st Lieutenant , etc. (each member raises his right hand as his name is called) do swear (or affirm) that you ‘1DUlwell and truly try and determine, acoording to the evidence, the matter now before you, between the United States of America and the person to be tried, and that you will duly administer justice, without partiality, favor, or affection, according to the provisions of the ndes and articles for the government of the armies of the United States, arnd if any doubt should arise, not ewplained by said articles, then according to your conscience, the best of your unde1’8tanding, and the custO’fl~ of war in like ca.~e8″ and you do further su’ear (or affirm) that you will not divulge the findings or sentence of the court until they shall be published by the proper authority or duly announced by the court, ewcept to the trial judge advocate and assistant trial judge advocate; neither will you disclose or discover the vote or opinion of any particular member of the court-ma1’tial upon a challenge 01′ upon the findings or sentence, unless required to give evidence thereof as a witness by a court of justice in due course of law. So help you· God.
Each member Ofthe court: I do.
Members lower their hands but remain standing while the president administers the following oath to the TJA (and assistant TJA) :
PRES:     You, Captain (and Lieutenant ) do swear (or affirm) that you will faithfully and impartially per-( form the duties of a trial judge advocate (and assistant trial judge advocate), and will not divulge the findings or sentence of the court to any but the proper authority until they shall be duly disclosed. So help you God.
TJA (and Assistant): I do.
All now resume their seats except the TJ A, the accused and counsel, who remain standing during the arraignment and pleas to the general issue.
TJA:     (By direction of the appointing authority, the prosecution with­draws the following charges and specifioations, and will not pur­sue the same fU1’ther at the present trial: )
A nolle prosequi may be entered either before or after arraignment and plea. MCM, par. 72. ­
TJA:     (Private ), I will now read the charges and specifica­tions wnder which you are; about to be tried. The affidavit and
147
632260°–45—-11
App.1
1st indorsement 1’eferrinq the case to me for trial are apparently in proper form.
The TJAnow reads the charges and specifications together with the name of the accuser. With the consent of the court the accused may waive the reading of the charges and specifi­cations. MCM, par. 62.
TJA:     The charqes were served on the aCCU8ed on 19_.
If the accused is being tried by general court-martial and less than five days have elapsed since the date of service of the charges, the TJA should announce that fact and ask the accused if he consents to being brought to trial at this time. Should an objection be entered by the accused, it may be a ground for a continuance except in a case of mili­tary necessity.
TJ A:     (Private ), how do you plead to each charqe and specification?
This constitutes the arraignment, as the pleas ot the ac­cused are no part thereof. MCM, par. 62.
TJA:     Before receivinq pleas to the qeneral issue, I advise you that speeial pleas or motions, if any, should be made at this time.
If the DC has special pleas or motions to offer, he should so announce them and state to which charges and specifica­tions they apply. Such as)… “a plea in bar of trial is entered to the specification under uharge II and to Charge II, said specification alleging desertion III violation of the 58th AW. The statute of limitations exempts the accused from trial for this offense.” Reference special pleas, MCM, par. 64. .
Special pleas, if any, should be made before pleading to the general issue. They should briefly and clearly set forth the nature and grounds of the objection to be raised. MCM, par. 64.
If there are more than one accused a motion to sever may be made. MCM par. 7lb. Any motion for continuance by either side should be made at this time. MCM, par. 52e.
After all the special pleas and motions have been made and the court has disposed of them, or if there are no special pleas or motions to make, the DC continues:
DC:     The accused pleads:
To all specifications and charges (Not Guilty) (Guilty) .
or
To the Specification of the Charge (Not Guilty) (Guilty).
(Guilty, except the words and —-­substituting therefor, respectively, the words _

App.l
and , to the excepted words not guilty, to the
substituted words guilty.)
To the Charge (Not Guilty) (Guilty) (Not Guilty, but
guilty of a violation of the __ Article of War).

or To Specification 1, Charge I, etc. To Specification 2, Charge I, etc. To Charge I, etc. To the specification, Charge II, etc. To Charge II, etc.
If the accused pleads guilty to any specification (s) or charge(s), the DC continues:
DC: (The meaning’and effect of the plea of guilty to __ specifica­tion __ charge __ and to __ charge __ have been explained to the excused.)
If there’ appears to be any doubt as to the accused’s un­derstanding; of his plea, the court should satisfy itself by questions addressed directly to the accused, and additional explanation if necessary, that he understands the effect of his plea of guilty and wIshes it to stand. If additional ex­planation is. made, the record will so indicate. In such case the explanation itself need not but the response of the accused, if any, must be recorded. The following expla­nation may be used in such case:
PRESor
LM:     (Private , you have pleaded guilty to Speci­fication Charge. By so doing you have admitted guilt of the offense(s) of , and your plea subjects you to a finding of guilty of such specification (s) and charge (s) by the court, in which event you may be sentenced by thl} court to the following maximum punishment: Before accepting your plea of guilty the court wishes to advise you that you are legally and morally entitled to plead not guilty and place the burden upon the prosecution of proving your glililt. With this in mind do you still wish to plead guilty?)
Acc :     ( (Yes Sir) (I desire to change my plea (s) to not guilty))
Upon completion of pleas the accused, assistant TJA, if any, and counsel for the defense are seated.
TJA:     Does the defense or the court desire any parts of the Man’/J;al or other authoritative legal preoedents read? ‘
DC : ‘Fhe defense does (not). PRES: The court does (not).
App.l
TJA:
TJA:
TJA:
TJA: TJA: TJA:
TJA: DC:
The court may dir~ct the TJA to read parts of the Man­ual or parts of other’ legal authorities.’ MCM, par. 75b.
Any extracts from the Manual or from other authorities that are read will be identified by paTagraph, page, etc., but need not be copied into the record. . . .
The prosuJUItion calls as its first witness: ——–­ment.
The TJ A may acquaint the court with the essence of the proof requisite for conviction on each specification. (This proof may be found in the. Manual under discussion and proof appropriate to the A W.) The TJ A may make a brief opening statement as to what he expects to prove. MCM, pal’. 75b.
The prosecution calls as it first witness: .__~ _
‘Witness presents himself in front of and faces the presi­dent of the court, and if in the military or. naval service salutes the president of the court,,’after which, the TJA (standing) administers the following’ o~th to the witness:
You swear (or affi/f’m) that the evidence you shall gime in the case now in hearing, shall be the trut1~ the whole truth and nothing but the truth. So help you God,
On affirmation omit last sentence.
State your name, grade, organization, and station:
Should the witness be a civilian,~he following should be asked: State your name, residence, and occupation.
Witness:
Do you know the accused? If so, state his na171.e.
Witness: __——-­
Is hein tl~e military service of the United States?
Witness: _
W hat is his grade and organization?
Witness: ~ -‘–__
The prosecution now proceeds with the direct examina­tion of the witness, at the conclusion of which the prosecu­tion may state: .
No further questions. Does the defense desire to cross-examine.’!!
The defense does (not).
If the defense desires, it may cross-examine the witness respecting matters brought out on direct examination or bearing on his credibility. The prosecution may pursue its redirect examination on facts brought out by the cross­
TJA:

TJA: PRES:
TJA:
DC: DC:
App.l
examination and then turn the witness over to the defense for re-cross-examination, etc. The TJ A then inquires:
Do any members of the court desire to question the witness?
Any member of the court may ask a witness, other than the accused, any questions that either side might ask subject to objection by either side or any other member of the court. MCM, par. 121b.
In questioning the accused, the members of the court are limited to questIOns which would have been admissible on cross-examination by the prosecution. MCM, par. 121b.
Should the court ask any questions which elicit new mat­ter both the prosecution and the defense may cross-examine upon such new matter.
At the conclusion of all questioning
Request that the witness be ewcused.
The witness is excused.
Should a witness be recalled, it is not necessary to again administer the oath. The TJ A will simply state “You are reminded that you are still under oath.” MCM, par. 121a.
If either side believes that it may be necessary to recall the witness for further testimony, the court may be re­quested to instruct the witness to remain available for recall.
The prosecution presents its case by calling all available prosecution witnesses and introducing in evidence the neces­sary stipulations, depositions, etc:., in logical order.
After the prosecution presents its evidence the TJA announces:
The prosecution rests.
The defense may at this time enter a motion for a find­ing of not guilty by the following appropriate statement:
“The defense moves for a finding of not guilty as to (all specifications and charges) or (to Specification (1), (2), (3), etc.), Charge (I), (II), (etc.), on the ground that the prosecution has failed to present sufficient evidence to sup­port a finding of guilty as to these specifications and charges.” The court may require specific indication of the alleged insufficiency. MCM, par. 71d.
The defense does (not) desire to make an opening statement. The defense calls as its first witness :; _
The defense presents its case in the same manner as out­lined above for the prosecution. The TJA administers the oath to the witnesses and asks the same preliminary ques­tions as are addressed to witnesses for the prosecution. The defense thereafter conducts the direct and redirect examina­tion and the prosecution conducts cross and re-cross-ex­amination.
151
App.l
DC :     The rights of the accused asa witness have been explained to him, and he (elects to remain silent), (desires to make an un­sworn statement), (wishes to take the stand as a witness).
The accused can only become a witness at his own request. H he prefers to remain silent, no inference may be drawn from this fact and no comment made upon it. If accused testifies to only one or a few of many specifications, the cross-examination must be limited accordingly. If there appears to be any doubt as to the accused’s understanding of his rights as a witness, the court should satisfy itself by questions addressed directly to the accused, and addi­tional explanation, if necessary, that he understands, and have him, after consultation with his counsel, state again what he elects to do. If additional explanation is made, the record will so indicate. In such case the explanation itself need not, but the response of the accused, if any, must be recorded.
PRES or(Private , as the accused in this case you have LM: the right to do one of three things:
First, you may be sworn and take the stand as a witness. If Vvc.h’ ¥\ you do that, whatever you say will be considered and weighed k\\ C~’ C ~\ as evidence by the court just like the testimony of other wit­
nesses, and you can be cross-examined on your testimony by the trial judge advocate and the court. (The following may be used if there are more than one specification.) If your testi­mony should concern less than all of the offenses charged against you and you should not say anything about the others, then they can question you about the whole subject of those offenses con­cerning which you testify, but they cannot question you about any offenses concerning which you do not testify.
Second, if you do not want to testify under oath you may, without being sworn, say anything you desire to the court as an unsworn statement, denying, explaining, or excusing any of the acts charged against you here. This statement can be oral or written, and can be made either by yourself, by your counsel, or by both of you. Since such a statement is not given under oath, and since you cannot be cross-examined upon it, it cannot be given the same weight by the court as sworn testimony, but it will be considered by the court and given such weight as it may seem to deserve. However, any admission or confession which you may make in your unsworn statement can be con­sidered by the court as evidence against you. Furthermore, even though you may be sworn as a witness you may also, if you wish, afterwards make a statement of this kind, not under oath.
App.l
Third, you may remain silent, that is, say nothing at all. You have a perfect right to do this if you wish, and if you do so the fact that you do not take the witness stand yourself, or make any statement, will not count against you in any way with the court. It will not be considered as any admission that you are guilty, nor can it be commented on in any way by the trial judge advocate in addressing the court.
Knowing these various rights, take time to consult with your counsel and then state to the court which you will do.) Acc: (I desire to (be sworn as a witness) (make an unsworn state­ment) (remain silent»
Should the accused elect to take the stand as a witness, the TJA will administer the oath and ask the following preliminary questions, after which the procedure follows that of other defense witnesses:
State your name, grade, organization and station.
Answer     _
Are you the accused in this case ~
Answer _ When the defense has finished its case the DO should state:
DO :     The defense rests.
The prosecution now has the privilege of calling or re­calling witnesses in rebuttal. After it has done so, or if it does not wish to rebut the evidence of the defense, the TJA may state:
TJA:     The proseaution has nothing !wrther. Does the court wish to have any witnesses called 01′ recalled?
PRES:     It does (not).
If witnesses are called, the TJA will conduct the direct, and redirect examination unless the court otherwise directs. MOM, par. 75b.
TJA:     (Opening argument.)
The TJA has the right to make an opening argument, which he may waive, and if any argument is made in behalf of the defense, the TJA may make a closing argument in rebuttal. MOM, par. 77.
DO:     (Al”gwment.)
The defense. has the right to make an argument at this point. MOM, par. 77.
TJA:     (Olosing argument.)
If there are no arguments or upon completion of argu­ments, the president may inquire:
‘App. ‘1
PRES: Has t4e prosecution anything further ~
TJA: It has (not).
PRES: Has the defense anything further ~ DC: It has (not). The question is repeated by the president until· both the prosecution and the defense answer in the negative. Reference order of receiving testimony and reopening case to receive testimony ‘previously omitted. MOM, par.
121a.
PRES: The court will be closed.
At this point all persons leave the room except the mem­bers of the court. The TJ A should not consult the court in closed session without the accused and his counsel being present. AW 30. ..
When the court has been cleared the members proceed to vote on the findings. The vote shall be by secret written ballot, shall be counted by the junior member and checked by the president, who will forthwith announce the result of the ballot to the members of the court. AW 31.
The vote may be preceded by an explanation· of legal principles involved by the law member and free discussion by the members of the court. The vote itself must, how­ever, be secret.
Specifications are voted upon first, and then the charges under which they are laid, otherwise the order of voting will be determined by the president subject to the control of the court. MOM, par. 78. A vote upon a lesser included offense or upon a finding with exceptions and substitutions may properly be taken after a vote on specifications or charges as written. Reference forms for findings with exceptions and substitutions. MOM, par. 78b and G.
A two~thirds vote of members present is required to con­vict of any offense except spying (AW 82) which requires a unanimous vote of members present. AW 43. Should the number of votes required for a finding of guilty not be obtained, the finding is automatically· not guilty. The president may, however, in the closed session, require recon­sideration and repetition of the voting until the court is convinced that the ballots cast represent the considered and final judgment of the court. A finding of guilty in which the requisite number of the court concurs become’s the find­ing of the court but may be reconsidered by the court at any time before the finding is announced or the court opens to receive’evidence of previous convictions. MOM, par. 78d.
When the court has reached its findings, the court will be opened. In the presence of the accused, his counsel and the personnel of the prosecution (all of whom remain standing), the president, if the court has acquitted the accused of all specifications and charges, announ’ces:
App.l
PRES: (———–,the court acquits you of all specifica­
PRES: TJA:
TJA:
DC:
TJA:
TJA: DC:
PRES:
tions and charges.
The court stands adjourned unless there is other business.)

or
If the court has found the accused guilty of any offense, the president will not announce its findings but will inquire:
Has the prosecution any evidence of previous convictions to
offer and will the prosecution read the personal data from the
charge sheet as concerns the accused? .
The prosecution has (no) evidence of _

previous convictions to offer.
. The TJA states (There are no previous convictions), or (the number of previous convictions, 1,2, 3, etc.) and reads the evidence of previous convictions as they appear on the form accompanying the Charge Sheet (extract from Service Record). MCM, par. 79c. At the conclusion of the read­ing, the TJA asks:
Has the accused any objection to the evidence of previous con­
viction (s) read.~
(No objection.) (The accused objects .)

The TJA marks the evidence of previous convictions as an exhibit to be forwarded with the record.
Should the accused object to the introduction of any offered evidence of previous convictions, the court follows the procedure as outlined in MCM, par. 79b.
The prosecution will now read the personal data concerning the accused as shown on page one of the Oharge Sheet.
The TJ A reads everything on page 1 of the Charge Sheet,except data as to witnesses. He then asks:
Is this statement eorreetP
It is correct. (The accused objects to .)
If the defense objects to any part of the data read, the court proceeds as outlined in MCM, par.
The court will be closed.
Deliberation on the sentence may include full and free discussion.
It is customary to permit eMh member to propose a sentence in writing. They are collected by the junior mem­ber and given to the president who puts the proposed sen­tences to vote beginning with the lightest. Voting on the sentence is by secret, written ballot, and it is obligatory on each member, regardless of his vote on the findings, to vote for an appropriate sentence for the offenses of which accused
App.l
was found guilty. 1£ the requireq number of votes are not ob­tained on anyone of the proposed sentences, new sentences may be proposed, and voted on. Reference voting on sen­tences, MOM, par. SOb.
A unanimous vote of members present is required to give the death penalty and three-fourths vote of members pres­ent is required to sentence to life imprisonment or confine­finement for more than ten years. All other sentences are determined by two-thirds vote of members present.
As with the. findings, the president, subject to control of the court, may require reconsideration of any sentence voted and repetition of the voting until the court is convinced that the ballots cast represent the considered and final judgment of the court.
Where two or more persons have been found guilty on joint or common charges each must be sentenced separately, although the punishment awarded may be the same.
The court shall award a single sentence for all offenses and not a separate sentence for each of them. MOM, par. SOb. The sentence may not exceed the maximum limits for the offense or offenses of which accused is convicted. MOM, par. 104.
When the court arrives at a sentence, the court will be opened, and the president will announce the findings and sentence in the presence of the accused, his counsel, and.. the personnel of the prosecution, who will stand during the announcement. I:f the court so decides, the findings and sentence need not be announced.
The anouncement may be as follows:
,
PRES: (Private ), the court, in closed session and upon secret, written ballot (two-thirds)! (aU) I of the members pres­ent at the time the vote was taken concurring in each finding of guilty, finds you: Of (all) the specifications and charges: Guilty. or Of specification 1, charge 1 (guilty) (not guilty), (and con­tinues to enumerate the findings as to each specification and charge) . Of specification ( ), charge ( ) guilty, except the words and substituting therefor, respectively, the words and of the ex­cepted words, not guilty, of the substituted words,gullty. Of charge ( )”: not guilty; but guilty of a· violation of the . Article of War.
This latter form (exceptions and substitutions) may be ap­propriate where the court finds the accused guilty of a lesser included offense.
App.l
PRES:     And again in closed session and upon secret, written ballot (two-thirdsp (three-fourths)l (all)l of the members present at the time the vote was taken concurring, sentences you: ( ). (Use appropriate form found in Appendix 9, p. 273, MeM.)
1 Announce only the required fraction, not the actual num­ber who concurred. Reference recommendations for clemency, Par. 81.
PRES:     Has the prosecution any other cases to try at this time?
After the sentence has been announced, if there are no other cases before the court, the TJA may announce:
TJ A:     I have nothing fwrthej’.
If there are other cases to be tried, the court proceeds with them. Otherwise:
PRES:     The court adjourns to meet at my call.
APPENDIX 2
RECORD OF TRIAL BY GENERAL COURT-MARTIAL AND
ACCOMPANYING PAPERS

INTRODUCTION
This appendix contains a specimen record of trial by general court­martial and accompanying papers as arranged by the Staff Judge Advo­cate for transmittal to The Judge Advocate General. (See par. 141c, supra.) It will be noted that papers are not arranged i!.l. chronological sequence in the order in which they are prepared. As a matter of convenience in checking and examining general court-martial records in the Offiice of The Judge Advocate General, all such records, when transmitted, should be arranged in the following order:
1.
Chronol09! Sheet. _

2.
General Court-Martial Data Sheet (WD AGO Form No. 116).

3.
General Court-Martial Order, 6 copies (plus one copy for each additional accused, if more than one).

4.
Review of Staff Judge Advocate, in duplicate.

5.
Charge Sheet.

6.
Report of investigating officer, required by paragraph 35a, Manual for Courts-Martial, followed by any other papers which accompanied the charges when referred for trial, unless otherwise disposed of.

7.
Report of Staff Judge Advocate, required by paragraph 35b, Manual for Courts Martial.

8.
Copy of reporter’s voucher.

9.
Any copies of the record not otherwise disposed of.

10.
Records of” former hearing.

11.
Record of trial proper in the following order: index sheet; receipt of accused, or certificate of trial judge advocate, covering delivery of copy of record; Special Order ap­pointing the court and amending orders, if any; record of proceedings in court; action of reviewing authority; exhibits; clemency papers. The action of the reviewing authority will be typed on a separate sheet immediately following the sheet bearing the authentication of the record.

(As a rule items 1 to 10 inclusive, should be bound together and suitably marked on front cover, the record proper being bound separately and also suitably marked on front cover; but if the total bulk is small, all items, 1 to 11 inclusive, may be bound together. In the latter case the
App.2 ­
point of division between 10 and 11 should be indicated by a separating cover sheet or other means. An exceptionally bulky record may properly be made up in the form of two or more volumes.)
The record of trial and the general court-martial order have been printed in usual book form. An actual record of trial should be prepared on one side of the page only, and a general court-martial order, if it requires more than one page, should be prepared on both sides of the paper so that the reverse side of each page can be read by turning up the bottom of the page.
159
App,2

RECORD OF TRIAL
(Md accompanying papers)
of
__•…….J;l.ark.._ ….••……..•………………1.\lnvj.LQ.,.. _.._ ~.Q!,Ol~:J!…. __._

(Last n:unt:)  (First name and middle initial)  (Army serial No.1
_.  ._  __  ~ivatQ__ (Grade)  __  __  ._.._  c.~mP.!!!!LL..l2.sth….l1l!.~ (Organization)
_.._.._.._…IQ.J:L7.l!£!ill>n….s…..c..__._.._ (Station)
By
GENERAL COURT MARTIAL AppointeJ by the CommanJing OFFicer

_ <12.tlLln.f§.l).t.o,:.lli.Y.1l!19.tL _.._._ Tried at
___v.Q~.k..I!!~!4..a…c.. …_.._.._.._
_7,-“De=c,-o..:an=dc.1″”O,,–,De=c,-o__” 19.4.’L.
COVER. SHEET
(Wlt/ulrlUll ‘ilil COf/.r shl” from “‘ WId ‘0 mtlk, ellrb01l lOP:I of ‘,cord lor MCIU,d Gnd Uti IU hockin, on original ,,,ord.)
·W. D., A.tti9f~No.1.l6
·ThiJ form lupenedea W. D., A. G. O. Porm No. II•• 5 January ‘943. which may be UJed ell e:dd:tD11toch are exhaulted. • 1.-..01…..
App.2
A CHRONOLOGY OF THE CASE OF:
Dat.
I. Offense committed:
2.     Accused confined:
By civil authorities
By military authority
By military authority order­

ing trial …;?fL5.W.l._… …_.-9_ _ Reconfined from escape _ilU.Q.Y_…._ __-iL _ Ace abs in desertion 28 Sept· to 26 Nov.
_~7_lJ9:!_……. … .~. __

3.
Charges preferrecl.:

(Date of Jurat)

4.
Charges investigated: _.~9..11Q.v_……. _ .3 _
(Date of Report)
5.
Charges fOlwarded by C. 0.: _.30..HQy. _. …_ l…._

6.
Charges received, J. A.: , _.,ll;Ul.9.’!.-_ __ -IL_._

7.
Charges returned:

8.
Charges received back:

g. Charges-action Staff J. A.: _l..lle.c.._.._.. . _..5__._
10. Charges referred for trial: _.1…D.e.~._……. . ..5…….•

II. Trial had:
Total days to trial •..10…Ilac…~ .11…….. Trial cotnr.lenced 7 Dee but Less time in hospital “””””’_”_”_~’ = _.. con tinued to 10 Dec on in-Less delay at request of sanity issue.
defense
Net total ….._J,J._…….•

12. Record of trial received: …13..1&.c.__…. • _.14… _
13. Review by S.taff J. A.: _.1.4…~-“.\L……. . .1.5 _

14. Action by reviewing authority: …1.5_.0.l’-\L……. • 19-__

Total to Action by Reviewing
Authority ……..12…_

IS. Mimeo. orders received:
16. Record of trial mailed to J. A.
16 Dec 17
G.O.:     .._…..__.~_._-_.-_._~—–_.-..­
Total _…._—_.._.. _._…~?…_­
Remarks: ~.~ /7′-···’·-“‘·”‘·CHARf,EST’ft’EY:_<·L~
….._ ~~Q.C>!…_.JAGP.._ .
Division 1udg8 AJuD&at,.
All delays must be fully explained. In computing number of days between two dates, disregard the first day and count the last day. All months will not be assumed to consist of 30 days.
.161
App.13
GENERAL. COURT-MARTIAL. DATA SHEET
._ _~?;:~ __ t~~~_’! _ _Q _.•_.__~!?~Q1~?~ .._fyJ._ c;:_Q..A,..J_?~:!;!l.J!!!’:_ ……•__

(Last D&W”:) (Firs’DalDC) (Mldl1lo lnitla1) (Anny serlal No.) (Ozade) (Company, rcgl.moat, or R1’m or serv1ell)
J_ A. G. 0., C. M. No••_..•.••• •••_
TR1A.L J. A. BrAIT 1. A. I.A.G.O.
Yes No Yes No Yes -N”
-~——————l–I—-­
I. Was courtordered” byproperauthorjty7_.__._._._.__ ._._~ ••••.••__•.__._._.__._..__••.•_•…_..~_. __•••••__ ~. _.n … .__
2. Are aU orders showing membership of court properly entered in record?;.••_.••• .k:::’:’:….. ~. _._.. _ .8. Were there less than five members detailed or present at any meetwg?._ __ .._~ …k: __.. _~_ _
4. Was the law member of the court des;gnated by convening order?_..••.•_••_.__._.•.
__k:’:_-:71-7 —.-.–__-.__
s. ~Jr:o~~~~~: h~ ;~:s~ra~:a~ke:es’:~n?:~~_~~::_.~.::.~~.~:_~~_~~~~~~.~:1~~. ::….. …..J~:~ ~.:_
6. Did the court have jurisdiction of person and offense? ••_••••••••••••_._.._••._.•__••_.. __~..••••••__~..•.•_.__.•••..• _ 7_ Do” the record show place, date, and hour court convened? ._…••. ..•••••• k::’:’._ .._. ~: .._..0.
•••     •_
8.     (a) Axe all members of the court, trial judge advocate, assistant trial judge advo­cate, defense counsel, and assistant defense counsel accounted for-as present ~” /”

or absent? .••••••••••••••••••_._._._:••••••_ _.__._._._._._._..••…••••.._ _•…•••_ •. _.._…..••••…….••…._

(b) If absent, i’i reason for absence given? __••••_•••.•••.•••.••.•..•………•••. __~•.••••_•.. _~__ ._~ ••.. •.•.__•__

9.
Wns accused asked whom he desired as counael? __..__._•.•..•.•..•••..••_•..•_.__._.._._..__ .~~_ .•.••.•..~__ ..•.• ….• .•..,….

10.
Was reporler sworn? .._•._._••••••••••••••••••••..•••_•.••..••…..•…._ _•••.•.._•. ._.__._. __L L_ __.__

11.
Is reporter’s voucher attached to record or its absence explained?..•.•.._-•••-.•••….-..L_Z–~ -. . _.. _..__._

12.
lVas interpreter 5worn? •••••••_••__••••••••••••••••.•.••.•.•..•.•..••..•._.•••.•_•••._•.__••__k? :.:-:: :::::…_ ._.. __

13.
Iscopyofrecordforenchaccusedaccountedfor?••••.•••.•..•••..••__•.•_•••.•.._.•…… ::V_ __ ~ .

14.
Was     accused extended right of challenge as to each member of the court, and
was he instructed as to his right to exercise ODe peremptory challenge against V V
15. w::::::::rc::::p~::: :~ll::::r:~~·:·~:·~·;;~·;~~l;~~:~·;~.·.~~~~~=:~~~·~~~~~~~~~:~k? ~2~ ~~:~~~~~ ~~~~~~~~ ~~~=
16.
\Vas the court sworn?__••••_._._•••••••••._•••••••.•••••••••••••••••_._.__•••:••••••••••.•._..”:::~._ …•.•.__k:-:’. _ __

17.
Was any Q.fficer sitting as D. me!D-ber or ihe court the s.ccuser:-,a v.itncss for·,the V V'”

prosecutlOn,or, upon Do.rehea.rmg,one……hosatasa.memberon.the formertnalL_•.•••.._.._………..••………•••_….._

—    VV
~:: ~;: :::::;::::C;r!:;c~; :::i:::~:.~:.~~:~~~~~~~~~~~~~:~~=~~:~~~~~~~~~~~~~~~~=:~~~:~~~~~~ ~~;?~: :~~~ ~~2~ ~~~~~:~: ~~~~=:~ ~~=
20. Are there copied into the rccord­
(a)
Charges and specifications? .••••…•……..•_•…•••.•••••.••.•….._.•_.••…… ~_..•__._ .~…••••••_…•…• _••__
(b)
Name, grade, and organization of the person signing charges? . V._ _~_..~ .._.. _

:::~J;0~~~~t~~~T~~~~-j~j:~~.~.~

23. If;~~~;~~,sifa:~ i~c~:~~d1~~.i~~i.:~_~.~~.:~~~~~~~.~~~.~~~.~:.~~~.i.t.~~~~.~~~.~.~_~.i~~~~..•::•.•.-~ .•~~.J~ _ __
..

::: :~~::::;~::~~;;::~:;~~~:.r~~:~:.::.:::.::::::::–.::::::::::::::::::::::::::::::.:::::::: :~: ::::~::II_~:I_::::::: :::::::_ .::=
W •.D.’~cC?~~~f;?~~~NO.llG (OVER)     IO-Jma1
General court-martial data sheet
. .v.’­__ . •.•…•.••……….•………… .~…..•……~~ ..•……_. …•..• ..__._•.•…•__ ._….•._•. _ •••••••• . _ ….•…….•….•_•.•• App. fd
TRrALJ,A, ~~ r, A.a.O. Ycs No Yes No III Yes No
27.
Was tbo voto upon each finding in closed session and by secret writton ballot? •.••.•~_. == .~_ .. ==.’.=.=

28.
Ii’; tho evidonce, if nDY~ of previous convictions admissiblc? .••..•_.••••••_•••• •__.•k:’: ~.._ L._ . (Pnr.}9c, M. C. M.Jo _

29.
Was the vote upon tho sentence in closed session and bY’ secret.written ballot?._._. ~…••••••. -~….•••..-.1_

I
.
30. Did at lellSt two-thirds o~ members prescnt at the time the vote on ench linding VV
31. In1\~:c~a::c c::::d::::;~~~-~~~~:-~-:~~-~~:::~:::~::~~·.-·~~·~~· ‘-“-‘-·.·.·.··..·1[.·.··..·.·.·.·
..u ••••
members present concur 10 each linding?_.•.••.•_•. .•••_._._•.•. ••..__.•..••……••
32.
Did members prescnt concur in sentence, as follows: To death, all members; to liIe
imprisonment or confil:!ement Cor over ten ye8J’!3′ at least three-fourths of mem· V V
bers; to noy other pUDlShment, at least two-thirds? •••._•••._••••_•.••_••••.•………….•..••.•_.._
.
33.
Doestheevidencesustain thefindingsof thecourt?.•_._..•_ _.._••••.••…….•……•. .._.__ _~ …•••..__••…..
_._ .•..•
34. Are tho findiogs legal? .••…•.•••.__._•.•…….•_••..•_..•.. . _.. .__•…….._. .V.. . .V
35, Is the sentence legal? ……•…_._.•_ _..__.•……………_ _ _._.•__ .V’.. :~~~_~~-2:__ -­
36. Does any ruling or the court on the admission of evidence or other matters injuri·
ously affect the substantial rights of accuaed?_..••_.•_•.•…•••.••_._._..•.•..•••_.•._.
37. Di2n~:~~~;:~~~~!:~.~.~_:~_~~.~~ ..~~~~~_~~~ ..~~_~~~~
38.
At proceedings in -revision nrc the trial judge advocate, assistant trial iud~e
advocate. defenso counsel, assistant deCense counsel, the accused, and the ind,i·
yidual counsel, if any, accounted Cor as present or absent?._ _

39.
Is the record properly authenticated?_._._..•…•_•.•…••••.•••..•……._•….•….••…._ -40. Docs it sufficiently appear that the defense counsel accepts the reco~d as correct? .•v:_

41.
Is action of reviewing authority properly entered in record and aigned? .._

42.
In case of adjournment or continuance, are’ each day’s proceedings properly

signed by trial judge advocate?_.._ ••_•.•._.•••_._…•••• ••…••_••._._._.__

43.
After each adjournment during trial, is presence Or absence of members oC court, trial’judge advocate, 38BiBtant t$l judge advocate, defense counsel.. assistant defense counsel. accused. his iDdividual counsel, and the reporter properly

accounted Cor1…__•••••_••••••__•• _••~ •••••_._._•••••••_._••••_ ••••••••••_••••_•.•••_••••

44.
Does action of reviewing authority:

(a)
Expressly approve the sentence and order ita exeeutioQ or lIuspens:ion?_

(b)
Designate the proper place of oon6.nementL••••••••_

(c)
Is the action otherwise legal and properly takeD?.._ _.•~ ••••••_……..
n_n n__
45. Is clemency recommended by the court!.._ _ _._ _..; y.._•.•__ ~: .~
NOT1!l.—QUestiODB 15-. 19, 21, 22, 23, 33, 36, 41. 8!ld 44 Dot to be answered by the trial judge advocate. Question 44 not to be answered by the staff judge advoca.te. .
Signatures of Howard Hitchings and Charles Taney
·—–·······–····—··············-·····chi;r&~;im~: … -.—….(~–_.-.
········{ictiDnj········
632260°–45——12
App.2
,I!EAJ)qt1AllDllS 29TH I!lJ’ANTllY DIVISION Jon Jackeon, South carolina
15 December 1943
QeDerlll     Court-*rtia1 )
Ordere No. 96 )

Before a general eourt-martia1 which con’tened at Fort Jackeon, South Carolina, pureuant to paragraph 1, Special Orders No. 261, thie hea4quanere, 18 September 1943, ae amended by paragrllph 11, Special Ordere No. 273, thie headquartere, :lO September 1943, was arraigned and tried:
‘riTate LDNIE O. lWlIr, 20401234, Company A, 126th In1″ant!7.
CHARGE I: Violation of the 64th Article of War.
Specification: In that PriYate Lennie O. Bark, Company A, 128th .Intant!7, hanng receiYed, a lavtul command from First Lieutenant Joe R. :Do(!l!Lllby, his 8Uperior officer, to report on the drill field for duty, did at Fort. Jackeon, South carolina, on or about 28 september 1943, willfully
disobey the _.
CHARGE Ii: Violation of. the 69th Article of War.
Specification: In that PriTate Lennie O. Bark, Company A. 128th Infant!7, haYing been duly placed in confinement in the 128th Infant!7 Guar4houee, Jort Jackeon, South Carolina, on or about 28 September 194~, did, at I’Ort Jackeon., South Carolina, 011 or about 28 September 1943, escape trom eaid confinement bafore he vae eet at 11berty by proper authonty.
CHARGE III: Violation of the 58th Article of War.
Specification: In that PrlY8te Lennie O. Bark, Company A, 128th In:l’ant!7, did, at Fon Jawon, South carolina, on or about 28 September 1943, deeert the eemce of the Ullited Statee and did remain absent in deeertion until he vae apprehended at Charlestown, South Carolina, on or about 26 NoYember 1943.
PLPJAS
‘1’0 the Spscification, Charge I: Not GUilty TO Charge II Not Guilty TO the Specification, Charge II: Cullty TO Charge II: GUilty TO the Specifieatioll, Charge III: ‘ Guilty, except the worde
“dssert” and “ill delMlrtion,. wbstituting therefor, respectinly, the word..
•absent himeelf vithout lea” froll” BD4 “without leaYe,” of the excepted
verde not guilty, of the eUbstltuted words guilty.

‘1’0 Charge III: Not Guilty, but &U1lty of
“t101ation of the 61st Article of War.

!’INDINGS
Of all Specificatione and Charges: Guilty
SEN’l’PlII’ClIl
‘1’0 be dishonorably discharged the eemce, to torteit all pay and allowances due or to become due, and to be contined at hard labor, at ouch place ae the reviewing authority may direct, tor ten years. (One
‘previous con”t1ctioll considered
,The sentence vas adjudged on 10 Decel:lbsr 1943.
‘. App.f2
The senhnce is approved but five7ears of the confinement imposed are rem1tted. As thus modified the sentence ,<ill be dul7 executed, but the execution of that portion thereof adjudging dishonorable discharge is suspended until the soldier’s release from confinement. The ~urth Serrice Command Rehebilitation Center, ~rt Jackson, South Carolina, is designated as the place of confinement,
B7 colllllWld of Major General SAMSON:
G. R. SMOTREIIS, Colonel, GSC, Chief of Staff.
amCIAL:
~1/.,~
t!’ ~~. BERTOLI,
Major, AGD,
Adjutant General.

165
App. ~
HEADQUARTERS 29T11 INFANTRY DIVISION Office of the Division Judge Advocate
14 December 1943
STAFF JUOOE ADVOCATE’S REVIE:’/I
UNITED STATES Previous Convictions : One
v. Confined: 28 Sept. 1943
tennie O. Bark, 20401234, hivate, Escaped: 28 Sept. 1943 Company A, 128th Infantry Heconfined: 26 Nov. 1943 Present Age: 21 5/12 Accused Arraigned:. 7 De;. 1943 Date of Enlistment: 13 NoV. 1940 Place of Trial: Fort Jackson, S. C. Prior Service: None
Charges and Specifications  Plea  Findings
CH I: Sp:  Violation 64th AW Willful disobedience of command of superior ~fficer to report for drill, Fort·Jackson. S. C. t 28 Sept. 1943.  NO NO  o o
‘CH II: Sp:  Violation 69til A”ii Escape from confinement. Fort Jackson, S. C., 28 Sept. 1943.  o o  G G
CH III: Sp:  Violation 58th AVl Desertion, Fort Jackson, S. C., 28 Sept. 1943, termina ted by appre­hension, Charleston, S. C., 26 Nov. 1943.  NO but G of violation 61st A1i NO but G of AWOL  G G.
Sentence:  DD,  TF,  CHI. for ten years.
Maximum Punishment:  Dea th

1. INSANITY OF ACCUSED
On arraignment the defense suggested .(R 5), and offered evidence to justify (R 6) all inquiry into the mentel condit.ion of accused. A continuance was grsnted upon motion of the defense for the purpose of reporting the facts to the appointing authority for appropriate action (R 6). When the court reconvened, the medical officer appointed to examine accusad testified that accused was, in his opinion, mentally responsible both at the tima the alleged offenses were committed
App.1J
and at the time of trial (R 7, 8), and the court so ruled eR 8).
2. EVIDE)JCE
~. For the Prosecution. On the mominr, of 28 September 194), at ab.out 08)0 (R 10), 1st Lt. Joe R. LOfjanby, company co:nnander of accused, on hearing that accused was not out drillinr, with the unit, ordered him broueht to the orderly roon: (R 10). ,Ihen accused was brour,ht up a few minutes later, Lt. Loeanby said, “You get out on the drill field rir,ht now” (R 10), or words to that effect (R 11). ·Accused refused and stated he didn’t intend to do any more work in the Amy (R 10, 12). Lt. Loganby ir..mediately .ordered. accused placed in confinement in the 128th Infantry Ref(imental Guardhouse (R 10), from which he escaped on the same day (ll 12; Ex 1, 2). Accused ,vas apprehended in uniform by.a military police sergeant at Charleston, S. C., a short distance from Fort Jackson, on 26 November 194) (R 1). Accused at that time stated that “he came into the Army to fight and they wouldn’t let him i’ight so he
wasn’t goinr, back to the Army a’1d ,”ark” (R 1). Accused pleaded guilty to es­c;:ape from confinement on 28 september 194) “nd to absence without leave from 28 September 194) to 26 November 194) (R 8).
b. For the Defense. The accused, after bein;: duly ,varned of his r1~hts by defense counsel and the court, elected to testify under oath, re­stricting his testimony to Charge I and the specification thereu.-,der (” 14). He testified in substance as follows: On the morning in question he arove a truck into Columbia, S. C., and back, after which he began raking the company street (R :t4); He rec;:eived an order to roll a wheelbarrow full of dirt ilp and down the compal\j7 street (R 14). He went into the orderly room and told the compal\j7 commander he was willing to work in another branch of the serVic;:e if he could get overseas in a noncombatant branch, althoullh he also stated that he wanted to r,o overseas and fight (R 14). He didn’t think that Liputenant Loganby told him to go out on the !ield .that day (ll 14). ‘!he court received a stipulation that a former company commander of accused, if present, would testify that, while accused was in his command for about eieht months, his character was
167
App.JJ
eXcellent and that he had no trouble with accused (R 15).
3.     COY’.lENT
~. The record is legally sufficient to support the findings. and
sentence.

(1)
the charge of willfully disobeying a superior Officer. is established by LtLoeanby and Sgt Pitch, both of whom testified that Mcused refused to report on the drill field after bein!: ordered to do so by his su?erior officer. The intentional and defiant character of this refusal 1s fully evidenced by the remarks he made at the ti~e.

(2)
In addition to the pleas of guilty, dul;r authenticated extrac’t copies of the morning report and guard report establish both escape from con­finement (Charge II) and absence without leave for the period alleged (Charge III). Although the specific intent not to return, a necessarJ element of the charge of des<:lrtion, is somewhat negatived by return of accused in uniform to military’ control near his own station, yet the escape from confinement, the fact of apprehension, the length of absence, nearly two months, and the statement to the military policeman that “he wasn’t going back to the Army and Vlor:’:” fully justified the court in inferring the requisite intent. Althoughthe statement by accused was in the nature of a confession or adcission made to a military superior, it was volunteered without prompting or interrogation of any kind (R13)

and so must be held wholly voluntary. The law member’s ruling in admitting the statement was therefore correct.
£. The court properly adjourned for further inquiry into the question of sanity of accused., The uncontradicted finding of the medical officer of sani~ removed any doubt on that issue.
£.. Evidence o! one previous conviction !or being drunk and disorderly was properly received by the court. £. There were no errors or irregularities which injuriously affected any substantial right o! the accused.
4.     RECOlO.lENllATION !.. Civilian background. Accused is almost 23 and a half years o!
App.13
age. Prior ,to enlisting he Uved at Charleeton, S. C., with h1.a father. His mother has been dead for some years. Re has married since his enlistmant but he and his ‘wife are’separated and she has instituted divorce proceedings. He completed grade school and three years of high 6chool, then quit school and secured a job as an elevator operator for about 15 months, earning $22.50 per week. He has no civilian police record so far as is known.
g,. Military Record. After enlisting on 13 November 1940 accused was given basic training at Fort Jackson, S. C., since which time he has been in four different organizations. He has served as a rifleman, company clerk and supply clerk. He has been uniformly ratsd as “Satisfactory” as a soldier and his, character rating has been from “Unsatisfactory” to “E>ccellent.” His AGeT score is 102. He has had three previous court-martial convictions, only one of which has occurred within a year of the present offenses. He was convicted by summary court-martial of disrespect toward a noncommissioned officer in February 1941, by special court-martial of failing to, obey a lawful order of a commissionsd officer in January 1942, and, as shovm at the trial, by sum:narJ court-martial for being drun:< and disorderly in January 1943. His total sentences to confinement have aggregatod four months. Company punish· ment has been imposed on accused three times vdthin the last year, twice for
drunkenness and once for absence without leave.
£. Recommended action. The record of accused, both civilian and military, shows that he is not a good soldigr. Junior officer leadershi;:> in his organization is good so no justificatio:1 for defiance of authority may be based on that ground. Nonethelsss, he is young, has a fair civilian background, and though he has numerous military derelictions behind him, none has bsen serious and they have been spread over nearly three years. It is believed that his a;:>parent resentment of r.:ilitory discipline r.:ay yet be cured with prope~ training. The sentence of th~ court, dishonorable discharge, total forfeitures and confinOl!lent for ten years is not excBssive, but it is believed that restoration of accused could better be effected if the period of confine­
ment were reduced. It is therefore recommended that the sentC:1C3 be approved,
169
App.2
b”t that five years’ confinement be remitted and that as thus modified the
sentence be executed, withholding execution of the dishonorable discharge
until his release from confinement. The Fourth Service Command Rehabilitation
Center, Fort Jackson, South Carolina, is the appropriate place of confinement•
.!!. A form of action designed to carry this recommendation into effect i3 attached hereto.
~~~
IIlXlO ROOT, JR.,
1st Lt., JAGD,
Assistant Division Judge Advocate.

I concur. I have personally
read the record of trial.
~0.’~-rl~-U
CHARLES E. TANEY, -_. Q
Lt Col, JAGD,
Division Judge Advocate.

App.,~
(WRITI NOTHING ABOVE THIS LlNII)
CHARGI SHEET _1i:Q.!::t;….J.”~!!..~9 ..h..~_,_.Q ……_. • _~7…!{.oy~!”~~!: …._.., 19»_
(Plnce) (Date)
Name, etc., of accllsed·._.J!;!;r:.~~._L~_(ll.\j,!1_.Q.,_, __ ;2Qt.Ql?:l~~ ..l’Y_h..Qgj’.J…1.~(\:t;h_J!lJ–,-.__. ._….._._
\GiI’o Inst nMW. fil”liL nllffiC’. and Jnlddle inltlnl In thot orour (ollowed by lI(!I’inl number, grndo, compa.ny. regiment,
pres-;;;;.t.-.-.—-..—..—-.-.-..—-.—..-·····-·———-·–······——·—a:assF”Daduct1on···-­
Age .~l….5!lL_ Pay,$_5Q.,9:9. .._ permonth. Allotmentstodependents. $~:?~ per month.
(Base pay plus ptly for lengthotservlce) .
Government Insurance deduction. $__N.~!!~_._._ per month.
Data as to service: __.!J_oJ!”j..9r..§.!!!:.’!.!.£!’!-‘–J<!lli~J~_ci..~LQ_h~1i’§_i;Q.’!..o.~!…Q.,.L.£n 13 N.Q..v~mbe.!:…1940

(As to each terminated enlistment, give Includinlldllics of Euviec llnd orguniULUon in which serving at tenninntlon. As to
~2.!”…:\h!”_~._~_,,_!:,,_,_ …$.!!!:yl..£~_~!'<!!’_d.!’.~ ~;y__~.~.z:~_”_’!..P’~!’~~!’_~~£!.J941~_ …__._. .__._
Cutrene cnlistm~nt. give the initial dlile and the tCIm thereof. Clve similar dal:1 ns to service not under nn cnlislmcnt)
Data as to witnesses, etc.: __!\_~~!!,st the_ Accuse~ .__. :.__. ~_
, (Give names, nddrcsses, and not!! if tor aocuscd. List documentary evidence and noto wh.ere c:LCh. Itern. ~hereof’
_1~:t;_.r”J__.J.£~_._!!~._19.g;,~!?y, __ R.9..~&_)-_2_8.!-!:..J”_~d·.9.’_:t.~~.”~.,,~!!.L.8.-‘-_g-‘–_. ._
may betound)
.l.$j;t-l’,,_LC.;;_~_LM_d·~!:”!).h..C.2..A, 1~.?:t;h ..l’!_f,.]~.r.td~~~s.!l.t __$.!.J;_, .. …..__ ..5gt._L.e.s.tllr..R._lit~))~, __C_Q_A~_l?j)Jh_.I!)f~._.f.Qr..t .J.~’1k§9-‘h._~., __Q_,_. .__ ._…. . _ _Qg:t.-‘;[?!:!9nJ), K~1),!ly~._,rr~._1;;~t<h .. ~_I}J. EQ.!:.t-_..J.?~k~.9-‘ld?-‘-J,-‘–._ J’-~_i.1J._,L~h!Ul.!’!HJ:!J..J.2.?.!h..l’l£.1.__forL.J~.”~.?.~&.._8…._Q_, … .__. ._. . ._ _S1(LCJ).?.rl!l_L§!1U.im~.)._Q29Jh..~.,.j!,_~ ..!!;,.1:,.._~:t;._–‘;h_g_!:!2~ __t!?_’ld?_d;.,._. ._. __. . .__ ____. . __. ._.. .r.~E .
:tJ)_”‘ ~..”2_”~_~_ci.L._. . ._. ._ NonS’..! .. …._…. ….. .. . ….._. .._.. …__.. .._. .. . >_. .__.._.. _ __________.._._._.P.?__.”_~~~~.!”_y._!>~E.~!!.”~ __”‘P.9_.~!?i,.:t;? _
_____ Ex~~~£”EL~~~!:!!_~!’.Lz:.e.P.?!:~.~_ ..9.9…~L~3§.~J!’.!.L’:’~~~~!. __~~P.!’~?~_’:” _ ~..9_!’:~~ber,._:t9.9..!. . .__.. . _
_ .__~_k~.c;:.k..~g.Py__9J.:.E.l!i!r.9 J_’~P9_ !”j;….A–“‘s.j;h_rni….m_QJlths _Q.LS£’.QJ&!Ilj;_~_!:..§n9  _
..NQYil_!!lp.~J::~~J.2!.3..  ..•  ._.  .  ..  _
___••__._••••  ••••  ._••_ ••__••  •  •__._.  •__•  •  …l..  ••  _

Data as to restraint of accused: ..J;g;)_n_D_~;L?lLfum..1;!1!J)J;>~!”_:I,9AJ__’__r.~Q!)f.i_11_mL~§_.1;9_”~!”~X __J..9.y1.
(Give date. place, nnd initial dnto of BDY restraint of a.ccus(:'(j)
~i’_!:_~~..”.!!p.~.L.l~!li.h_~..fan tlJLQ.l§r_<J.!>.Q~~~_..Iort Jacl>§.Q.lli..~ _ ,,0-=….
W.D., A. O. O. FOl”Dl No. 115 8Jwy,l1H3
(1)
171

App.1J
CHARGE : Violation of the __.2.~_-:-__ Article ofWar.
Specifi.roticm : In that Private Lennie o. Bark, COll!pany A, 128th Infantry, having received a lawful command from First Lieutenant Joe R. Loganby, his superior officer, to r aport en the drill field for duty, did at Fort Jackson, South Carolina, on or about 28 September 1943, willfully disobey the same.
CHARGE II: Violation of the E$th Article of war.
Specification: In that Private Lennie O. Bark, COr.lpany A, ·128th Infantry, having been duly placed in confinement in the 128th Infan~J Guardhouse, Fort Jackson, South Carolina, on or about 29 September 1943, did, at Fort Jackson, South Carolina, on or about 28 September 1943, escape from said confinement before he ITas set at liberty by proper authority.
CHARGE III: Violation of the 58th Article of War.
Specification: In tl\at. Private Lennie O. Bark, Company A, 128th Infantry, .did, at
Fort ·Jackson, South Cerolina, ·on or about 28 September 1943, desert the service of the United states and did remain absent in desertion until he was apprehended at
Charleston, South Carolina, on or about 26 November 1943.
(Additiona! slieets, If n~ary, lor eharaes and specificatIons will be attached here. Ordinarr 8 by 12¥.i-Jnch paper will
be used for additIonal meets)
(2)
(WRITE NOTHING BELOW THIS LINE)
App.~
(WllrI’Ji1 NOTHING ABOVE TBIS LINE)
(Signature of accuser) _ ():::!..~ a ~_!!..’~
~=;. LOGAD~=rr=
—-lat Lt, 126tb…,1IJlu’l:t:..-_-,…,-_
(Grade, orpnlU&t.lon. arm. or eorTIOl)
AFFIDAVIT Before me. the undersigned. authorized by law to administer oaths in cases of this character, per.
~nally appeared the above-named accuser this ~dllY of__..NC”leIIIlulr.__….__•19.A:l….,lind made oath that he is a person subject to military law and that he personally signed the foregoing charges and specifications, and further that he’ has personal knowledge of the matJ;ers set forth in specificationi
ot (:hares I …. ; and ‘has investigated the matters set
(Iwllcata by apecl.8cat!on lind chll.1’f:”e nw:abenl)
forth in specifications –At OhargflB IT and ITI .._.___ , and that the same
(1lJ.dieate by llPccl.D.eo.t!on and ~lU”ienumben)
are true in fact, to the best of his knowledge and belief.
H -. .E. r.
!x.:;~~~~’.fL2_”-JS:t.~d:;­
15RADLEY M. MeGI (Orado.lI.Ild orgllnlzatlon) —-T­.c&p.t…..l2Jl.t1LIIl4-.AsUJli.llJ1L… _ _ .
(OmclPl tho-rlltter, 1I.81WJ1tQar)’ court. %lotnry public, etc.)
Noms.-At (.) strike out words not applieable.
If the accuser has personal knowledge of the facts stated in one or more specitlcatioDB or parts thereof, and his knowledge as to other specifications or parts thereof is derived from investigation of the facts. the fann of the oath will be varied aceordingly. In no case will he be permitted to state alternatively, as to any par.. tieU1ar charge or speeifieatton, that he either has pera:oD.al lmowledge or has investigated.
If the oath is administered by a civil offieer having a seal, his official seal should be affixed.
1., IND.
Headquarters 29th Int Dl V • .J!lll:.t..h~klllll4-a…J:~_,~~__• 19J.3.
(Place) (DaLll~
Referred for trial to Maj Howard ..r~.R1.tM1lJ,g!l~._.RCl-~.tAJJl.f.:.my”‘.,TtlA:J….rA of gen~&_
. (Grade. name, and orl:’anlz.atlon of summary COllrt, or trial Judze advocate)
court-martial appointed by paragraph _.1_, Special Orders
(SUlDllW7) (Trial Judlre ad’iOCB.to of Ipedll1 or genem.l)
No. -261-. Headquarters .l3lI.th…1llLll1.Y .• 18 Se»tlll!lber .19..£t
&, amended by par 11, SO Uo 273, Rq 29th Inf Div, 3) Sept 43. By command of _MaJor..,Genftra.l SAMSON
(Commaad.or order) (Grlllle And name or command1l:1s’ofBcer)
“.-..-.
9:;ii;;~~vU .U4i41.#
y W.fBERTOLI, Maj, AGD. AdjUtant General
App. ~
I haye served a copy hereof on (each of) the aboye-named accused, this Ls.t. day of ~ce”‘ber , 19A3­
(Signature)~i.(LQ.:_.~~ialJU<lge Advocate.
HOWARD J. H~l!GS. IF
..MIIjA…Rq..29.th..l.uf..Di:Y .__. . …. .
(Grade and ofJrsni:ation) (SPACE FOR USE WHERE TRIAL IS BY smmAR\” COURT) CASE N••__ .
FINDINGS SENTEN’CE OR ACQUITTAL AND REMARKS
SPECIFICATIONS AND CHARGES PLEAS
Place ..__ .. __.  .  ._., Date ..  _____,19_
…_ ..__.__.. Headquai’ters ..  .  ._. . . .. • . (Sljlnnturc.l:l’sde, andOf8anlu.tlon) ._ _ .._ . (Place nnd date)  , 19__  Summary Court.

____… .. . .. , Commanding.
(Slll’naturv,lO\”rnde.ondofll’ani:r.aUon)
El’ttered on .l;ervice record in cases of conviction _
(lnIUal, ot penonne1adjutant)
(4)
(W1U’1″II NOTKJNG BZLOW nl. LINZ)
App.2
L=t1TER OF ‘lRANSIIITTAL’ COURT=JIARTIAL CHARGES
Company A. 12Sth ~fantrY (organization
Fort JaCkSOn S. C. (Placej 27 November 1943 (Date)
Subject: General # $##11 Court-M!lrtial Charges.
To: Connnanding Officer, 128th Infantryj Fort JaCksOnl S. C.
(Organization (Place

1.
In compliance ‘W1th paragraph 23, LCIJ, there are forwarded hermth
court-martial charges against:
Bark Lennie O. 20 0123 Pvt. Co A 128th Inf.
Last name (First name and ASN) (Grade) (Organization)
of accused) middle initial)
2.
SWIIIl8ries of expected testimony upon which the charges are based
are attached.
3.
The following documentary evidence and-exhibita upon which the
charges are based are attached:
!!.. Extract copy of morning report, Co A, 128th Inf, months of September
and November 1943.

2,. Extract ,coW of guard reports, 1<!8th Inf, mon the of September and
November 1943.

4. There is attached evidence of 2!!2.-previous conviction~ of accused.
5• Civilian offenses, Character; occupa tion, and other information of
the acc,used before entrance into the Army: See Incl. 5 attached.

6.
Character of military service of accused prior to offenses here charged: Satisfactory.

7.
In my opinion he should __ be eliminated frem the service.

8.
I recollllllend trial by ~Court-M!lrtial.

~·a~
Signature
JOE     R.’ LOGANBY (Name typed)
1st Lt. Inf. Comdg. (Grade and Organization)
5     Incls. Incl. 1 -Charge sheet (in trip.’. Incl. 2 -SUJDD’.aries of expected
testimony (in trip. )•
Incl. 3 -Documents listed in par. 3.
Incl. 4 -Evidence of orevious convictions (in trip.).

Incl. 5 -Civilian record of accused.
175
App.2
FORWARDING INDORSEMENTS
3:>1     :Bark, Lennie O. (Enl) 1st Ind,
(Name of accused, last name first

Rq,     l28th Inf Fort Jackson, S. C. ..28″,””N”‘0r.v~e:::;m”,b”,e,,”r 19 .!2 (Organization) (Place) (Date)
To: 1st Lt Leland V. Neeland JIg 128th Inf Fort Jackson, S. C. (Rank) (Ml name) (Organization) (Place)
1, You are designated to
20401234 (ASN)
inclosed charges against Pvt Le e O. :Bark
Co A l28th Inf (Grade and full name of accused
(Organization Your investigation ,,111 be conducted in conformit;y with paragraph ~, MOM.
2. The investigation ,,111 be completed on W.ll•• A,G,O. Form No.l3:> (Pretrial Investigating Officer’s Report) and returned Idthin 48 hours. An;y dela;y be;yond that period will be explained in ;your report.
:B;y order of~el SWXNJl!JR1!E
Signature of Bradley McGinty
ll~ M, McGINTY Name t;yped)
~”t. I28th Inf
5 Incl••
n/c
App.1J
PRETRIAL INYESTIGATING OFFICER’S REPORT
•……?u4…._Ind.
!<~…J&lW~”l[~,.N!l~).,M~ •..Hq.”128th,.Inf•.,,..,'” Investigating Officer, 29..:llo.v.embe%….• 19–43
To: .._C.9 l<1a~.h.llf.., .Fo_rt..J,acll:a011 ,s•..a•._ _ _ __ __._, -‘__’_”””‘_” __’
1. r have investigated the inclosed charges dated …_.zz..IDlY.8J!lh.~ •.19.43.. ••• •
~.!~~~.~~.==~~~~~::~_.~~~~~~~::=~:~=~~~in~c;;~~;knce·witii’tiiepro~i(;~~-of
Article ofWar 70 and paragraph 35a, ManualforCourts-Martial. Attheoutsetoftheinves­tigations, I informed the accused of the nature of the charges alleged against him; of the names,of the accuser and witnesses, so far as known to me; of the fact that the charges ;were about to be investigated; of his rie;ht to cross-examine all available witnesses against him and to present anything he may desIre in his own behalf either iIi defense ormitigation; of his right to have the investigating officer examine available witneSses requested by him; I and that it was not necessary for him to make any statement with reference to the charges
against him, but that if he did make one it might be used against him.
2. In the presence of the accused, I have examined all available witnesses and docu­
mentary evidence and have reduced the material testimony given by each witness, under
direct and cross examination. to a statement embodying the substance of the testimony.
taken on both sides, which said statement is attached hereto as hereinafter indicated:

lot Lt Joe R. LogEUlby’, Co A, 128th Inf, Exhibit A
1st Lt Caee M. Grant. Co A, 128th Inf, Exhibit B
Sgt Lester R. Pitch. Co A,’128th Inf, Exhibit C

ISgt Marion D. Kelley, Jr, Co A, 128th Inf, Exhibit D Sgt Charles Sellin., 1650th S. U., M. P. Det, Charleston, S. 0., Exhibit E
3. The substance of the expected testimony of the following-named witnesses either in oral or written -form was made known to the accused who stated he did not desir,e to cross-examine such witnesses and therefore the same were not called or examined in the presence of the accused..
let Lt John Smith, 128th Inf, FOrt Jackson, S. C., Exhibit F
4. The following documents have been examined, shown to the accused, and are appended:
A. Extract copy of morning report, Co A, 128th Inf, months of September and
Novembe~, 1943, Exhibit G

~. Extract copy of guard reports, 128th Inf, months of september and Novsmber,
1943, Exhibi t H

(OVIIK)
App.~
5. The. accused, after he had been carefully wa:;;rnilejjdti<bYbmpe.aiesaalib~ov~ePliiniiidii·c~ajCteid,~*~Sillaliii’dgc
. that he did not desire to make a statement-or-*”
~
• Strike out words not applicable.
6. Explanatory or extenuating circumstances:
The evidence adduced established a willful disobedience by the accused of the order of his superior o:fficer, Lt Loganby. His unexplained absence of two months colDl:lencing wi th an escape from confinsment and terminated by apprehension, coupled with his statements cade to the apprehending mil~tary policeman justifiss the sus­taining of the desertion charge. No mitigating or extenuating circumstances appear.•
7.
There is no reasonable ground for a belief that the accused is now, or was at the time of the commission of the alleged offense(s), mentally defective, deranged, or abnormal.

8.
Trial by _.ganerBJ….c:o.ur.t:<me.r.tial_._ is accordingly recommended.

9.
There is attached a record of _ one _n’ previous convictions committed during the current enlistment and within one year preceding.the commission of the offense for which the accused is now charged. (Par.79, MeM.),

10.
In arriving at my conclusions, I have considered not only the nature of the offenses and the evidence in this case, but I have likewise conSidered the age of the accused, his military service, the necessity for preserving the manpower of the Nation in the present emergency, of salvaging all possible military material, and the established policy of the War Department that trial by general court martial will be resorted to only when the charges can be disposed of in no other mamler consistent with military discipline.

~n~.~_._.._
(Signature)
5 Incls  _…n….LELAJID..v.~ ..l!lEEI.AJm..n..__nn…..nnn..  ….
n/c  (Name, typeC:)
_  l.s.t…Lt.~ ..12at.h..Inf.nnn.nn  n  nn._n ..
(Grade o.nd ortianization)

App.13
RB:OI!MENDATION OF ‘!RIAL BY COU:lT-;lARTIAL
201 (Bark I Lennie O. .(Enl~ 3d Ind.
Name or accused, last name first

Hq, 128th Inr Fort Jackson. S. C. 30 November 19 !t1
(Organization) (Date)

:ro: CG     29th Inr Div Fort Jackson, S. C.
(Grgan1zation) (Place)

I recommsnd trial of the inclosed charges dated _.,:;2:.J7–!”No””v,-,9″,m”,b”,er!.-‘1,,!9″,4<!.3__ against Pvt Lennie O. Bark. 20401234. Co A, 128th Inf b)” general court-llllU’tial.
7~f~
(Signature) •
WARNER F. SWINBURNE (Name, typed)
Col, 128th Inf Comdg.
I
i. Incls.     (Grade and organization)
nlc
* This indorsemsnt should be signed personally by the officer exercising court­martial jurisdiction over the accused, and not by an adjutant or other subor­dinate.
179
6322600 –45—–i3
Loganby, Joe R., 1st Lt, Co A, 12Sth Inf (Sworn):
I am Commanding Officer of Co A, 12Sth Inf. On the morning of 28 September 1943 at about 0830 and after the company had gone out to drUl. I had Pvt Bark brought up to the orderly room. He was not out with the company. When he came in, I told him, “You get out on that drill field rir:ht now.” He refused and said he didn’t intend to work any more· while he was in the Army and that he had been there long enough already. 1/ben I saw he “asn’t going to obey my order, I ordered him placed in confinement.
CfJ_·L2··

N.LO~~
1st Lt, Co A, 128t!l Inf
Subscribed and sworn to before me
this 29th day of November 1943

~V/Ju.4,J
LiiAiIDCNEEI,AND
1st Lt, 128th Inf
Investigating Officer

ElCllIBIT A (Inv. Off. Report)
App.2
Grant, Caas M., 1st Lt, Co A, 128th Inf (Sworn):
On the morning of 28 September1?43, after the company had gone
out on the field for drill, someons di”covored the accused in the latrine.
Lt Loganby called the accused to the ordcr1y room and ques tioned him as to
the reason for not heing on the field. I was there at the time. The ac­
cused said that he did not intcnd to go on the field and furthermora that
he didn’t intend to do any more work. J.t Loganby said, “You go out on the
drill field right now.” The accused said that he vlould not and that he had
been in the Army long enough and that he didn’t like the way it was run.
Hs stated that if hs stayed here much longer he would commit suicide.

r/ …/; /

~. /1). g’lAl–YVr
CASS l~. GRANT 1st Lt, 128th Inf
Subscribed and sworn to before me
this 29th day of November 1943
oC~dV~­
LELAND V. NEELAND
1st Lt, l2Bth Inf
Investigating OffiCer

EXHmIT B (Inv. ott. Report)
181
….2
Pitch, Lester R., Sgt, .. ., 128th Inf (Sworn):
1 was in charge .! quarters .. 28 Se!’tember … “.. in t.he order1y room at the time Pvt .ark was called in. The accused rsfused to …. Lt Loganby’ s co.man. to go out on the drill fie1d … stated he “… not .. … more vlOrk. .. .1.. said that hs w.. tired .! the Ar.J. … “… …mit suicide if he .t…. nere much lon&er.
~U?CJ~
LES.ERR. PI.CH, 38006411, Sgt, .. ., 128~’1 tn!
Subscribed … S1rorn to before ..
this 29 th … .! November 1943

~y~
LELAND V. NEEr.AND
1st Lt, 128th Inf
Investigating Officer
….I. . (Inv. Off. Report)
App.B
Kelley, Marion D., Jr, sgt, Co A, 128th Inf (Sworn):
I was present on 28 September 1943 when It·Loganby said to the eccused, “Didn’t I tell you that I wanted you on the field?” The accu’sed said “yes.” Lt Loganby said something to him about.worlt and the .accused said that he didn’t intend to work any more.
/?}~h’:’5h~
JR~
!!ARION D. KELLEY,
Sgt, Co A, 128th Inf .
Subscribed and  sworn  to before mEl.
this 29th day of Nov~mber 1943

~V·v~
LELANliV: NEE!.AND .
1st Lt, 128th Inf Investigating Officer
mrmT D(tnv. ort. Repor~)
183
App.2
Sellins, Charles, 1650th S. U., M. P. Det (Sworn’:
, On 26 November 1943 I was on patrol duty in Charleston, S. C. Accused was walking alone a street in a dirty.uniforoi, so I stopped him and asked him for his pass or furlough, which he said he didnI t have. He then told me that they wotildn’ t let him fight in the Army like he wanted to so he wasn’t goinp: back to the Army and wol”k any more. Th3t was all that was said. I didn’t say anything more than ask him for a pass before he started to talk.
~~/~
CHA.’ILES SELLTIlS, 14063281 Sgt, 1650th S. U., M. P. Det
Subscribed and sworn to before me
this 29th day of November 1943

,~>~.~
, LELAND V. NEELAND
1st Lt, 128th In!
Investigating Officer

EXHIBIT E (Inv. orr. neport)
App.1/J
Smith, John, 1st Lt, 128th Inf (Unsworn, by telephone):
I am prison. officer of the 128th Infantry. The accused, Bark, was confined in the 128th Infantry Guardhouse on 28 September 1943. On that same afternoon he was absent at roll call a)’ld couldnl t be found. He was not re­leased by competent authority and did not have my permission to leave. On 26 November 1943 he was returned to confinement at the 128th Infantry Guardhoilse.
EXHIBIT F (Inv. Off. Repott}
185
App.2
ACCUSER’S SlHiARY OF EVIDEHCE in the case of
Bark, ~nnie 0., 20401234, Pvt, Co A, 128th In!
, 1st Lt Joe R. Loganby Comdg Co A, 128th Inf, ,will testifY’ that the accused was brought before him in the company orderly room on 28′ Sep telOber 1943 for failing to report for drill wi th his organization; that when commanded to go out on the drill field the accused refused, saying that he !lad been in the Army Plenty long already and that he didn’t like the way
it was rWl.
1st Lt Cass H. Grlint and Sgt Lester R. ‘Pi. tch, both Co A, 128th Inf,
will corrobbrate Lt Loga”lby’s testilllPny, both having been present dunng

the entire conversation.
Sgt Uarion D. Kelley, Jr. Co A, 128th Inf, was in the brderly room during part 01 the conversation and heard Lt Loganby say to the accused, “Didn’t I tell you that I wanted you on the field?” to which the accused said “Yes.” He also heard Lt Loganby say something about work to which the accused replied that he didn’t intend to work any more.
1st Lt Jolm Smi th, 128th Inf, will testify that accused, after being confined in the 128th Inf Guardhouse on 28 September 1~43, escaped without authori ty on 28 Septe,mber 1943 and didn’t return until reconfined on 26 November 1943.
Sgt Charles Sellins, 1650th S. V., M. P. Det, Charleston, S. C., will testify tllat he plcked accused up in Charleston, S. C., on 26 ~ovember 1943 because he didn’t have a pass or furlough, and that accused told him he wasn’t going back to the Army to do any more work.

~ao~~to
JOE R. LOGA@Y 1st Lt, 128th Inf Incl. 1
CIvn.IAN RECORD, OF
Bark. . Lennie O. 20401234 Pvt. Co A. 128th Inf.
Chief of Police of Charleston, S. C., in reply to questionnaire,
raports that prior to enlisting accused lived at Charleston, S. C.,
with his father, his mother having been dead for some years; that
accused has married since his enlistment, but he and his wife are
separated and she has instI.tuted divorce proceedings; thpt he com­
pleted grade school and three years of high school, then quit school
and secured a job as an elevator operator for about 15 months,
earning $22.50 per week; and that accused has no police record and
that his civilian character is fair.

C)mliL~
JOE R. LOGANBY (Name typed)
1st Lt. Inf.
Incl. S
App.13
HEADQUhRTERS 29TH INFANTRY DIVISION Office of the Division Judge Advocate
Fort Jackson, S. C. 1 December 1943
JA 201 Bark, Lennie O. (Enl)
Subject, Recommendation as to disposition of court-martial charges.
To I Commanding General, 2;lth Infantry Division, Fort. Jackson, S. C.
1.
The attached charges and allied papers in the caSe or Privata Lennie O. Bark, 20401234, Company A, 128th Infantry, charged with willful disobedience of a lawful order of a superior officer, escape from confine­roent,and desertion, have been examined.

2.
The evidence supports all charges. It shows a flagrant violation of the 64th Article of War. Leadership in the organization of accused has been of oonsistently high quality and no circumstances appear to mitigate this act of willful disobedience. The remaining two charges, equally well ostablished by the evidence, leave no choice but to recommend trial by general court-martial in order that an adequate sentence may be imposed. The prior record of accused presents nothing in his fevor and he has one previous conviction. He appears to be mentally competent.

3.
I recommend trial by general court-martial. p;f’ ~h.Ja .

CHARLBS E.
~AN~
Lt Col, JAGD Division Judge Advocata
1     Incl. Ltr fr Co A, 128th Inf, 28 Sept 43 “”/’3 inds, and 5 incls.
187

App.~
WAR
“‘>= D~ O. Voucher No. __••.• . ••._..
]'”.)rm
CO’OJptr WAR DEPARTMENT Bureau No _._.__ _..__
A’QilI3t17.
PUBLIC VOUCHER-PERSONAL SERVICES Compensationjor Civilian Witness and/or Reporter, Civilian, or Enlisted Man On Detail THE UNITll:D STATES, Dr••  ~AID 8~
To James T. McSorley
(For Il8I!l or Parfne’ Office)

clvrLIA&~VCf 1~1oRT~~~Lis¥~t~AN~~/d~~8:~~~r:t BubsiBtenoo 88:·,0 WITNESSi (g REPORTER•
…………-~~~ ..~~~ ..~J~~~ …..__…._._.n._…u…….u… at ..J’!!tl_~~~_~9.!ta…~”.)1.•.~ __.•

or giving deposition before……….
E~:o~:!vi;~~:~~!:~~~;;:i~;~;;;:;:~~:~~;;=:::::=::===::::::::::=::::=:=:::~:::::=

D.res of .ttendon”, ..’1-••D-…b&r_.1943.AI1d..lQ..ll8cemhar.~9.43 _.__ .
D;schn”,ed fNm further .ttendance _ ,. 1l15 _.~._.•.1lLne.c.VlIl.lI.~r ..1.9.4.a ..
fH….) (Do”‘)
{Attach certllled eop1 or order convening tho C<lnrt and”of tho rnbPf!Do}
AMOUNT
~~For travel from ..C.Q],UlIIb1a .s…..a~ __._ _.. to .1’llr~…rAllkGn…SA_Jl” _ arid returo. $ _
:~~~~:~~~===::::::: :a:::~~~~~.~.~~.::~~~~: ::~:~eg_~:·::~·;~~:;:~~-;~~~:eOO:f~t::::n~~~~~~~~~=:::::~ :~::~~~~~~ ~~~~~~~:~:
_ _•..••••••••••••••• days atte”udance at $ 5..00.._._ per dlly __ _.•_••_ ••_._. ••__•••.•••••• ~ ••••••••.•.••. __._..~Q 0.0 _
._ __•••••••••••.. days at$•••_. ._•.• perdiem in lieu ofBubsistencc_….•__.__._._._._._.•_ ••._••••••_••••••••••….__•._..•.._._._.__._
Additional allowances for reporting as itemized on the reverse hcreor._ ._. • •••••••_n ••• ~~. __ a6_._.._
AMOUNT CLAIMED•.• •••_ s.._24 _.0.6. _
I CERTIFY that the above account is true and just in all ~ectB· that (Payee will NOTuselhlslP&C’D) payment therefor has Dot been receive~8nd that •• I am NOT a Bafarled DMerenees.._._. •__._._••••_ao••••••••••••••••••••••••_
(::ih1~::)th:~:e:EZiE:~._ :~;~;-~:;:~;:=~:~~.:.~:::::::~~
Date l3.l1ec..l!!!13 _ T;Ue RllPllr.bz _._ _………….. (Slgn.ture or InIU.1sl : _._ __.._

I CERTIFY that the above account is correct; that the elaimllDt actu&lly performed the services olaimed which were authorized
pursuant to the attached authority, and was neCCSBarily in attendance at the said proceedinga as Bet forth above; ·.that at the time

of the ,.rd tr.vel and .ttend.nce h. w” NOT • ,.Iaried employee ot the Government nor •de~~; and that where cl.Im :::::::;e!::::~:.~.~.~!..~~~~~~v:~~~rfr~~~i~~~~~~~~i~ ….:……~’:
n.te …..1.3..De.c.1.9.4.a……….. Title .J!Iljllr•..Illt••..!l’r1l!l_.Jlll\g.Il..AJl..Vll.~_t_~A…_

ACCOUNTING c::LASSIFlCA.nON (For Ocnap’cUon b,. Admll1ll1l…trve om”,)
LIMITATION APPROPRUTION
I
APP~~~1AO)~O~k¥iZr~ZION, APPROPRIATION TITLE OR PR01ECT _____________________ /.__..;A”‘.:;O.::”””’–__ AlI’otnn’
h __• __ -, c—._ __ __•. $__ $ __
II
:::::::;;;~:~~:~:~:~:;:~:;~;~::==: ..~:::;:;;;;;:::::I:~~~~~~~~~~ :~::·~~;~~~:~:[~~:~~~~~~::~:::I:::::~~~~:~:FI~;~:~~~~;~::::= _
on Treasurer of the United States Paidby CheokNo.•••••••_.–.-••,dated.—-.–••••J19••••••ror$•••,.. .um_••_.~ {in favor of payee Damed above.
{
_”””‘”…,,.C,….,,h,::.,.••••.••••••••••••• on ._••_•••_••••_••••••_••__, 19•••••• (-J:l:rL) •• _.__.­• .__. ._.._._
‘Chock mllflr. tlppllcable block.
“Wb(IQ usod by e.a.I~lod pcnoJlQol Clll’ roportcra’ fOM, doloto tbla phraoa. l&–d1U·l

App.13
ITEMIZED SCHEDULE OF ALLOWANCES CLAIMED
====r======-=-=-=~======c=====;======~.
DATE
7 Dec 1943 10 Dec 1943
CnA.Ji:ACTJ::R OF SERVICES RENDERED
Reporting GeM case of pvt. Lennie O. Bark, Co. A., 128th Inf., Fort Jackson,S. C., GeM aptd by par. 1, 5.(1. 261, Hq. 29th Inf, Div., 18 Sept. 43.
1 hour actualll spent in court (193O-a115)
2     hours (0900-1115) actually spent in court
For transcribine notes and for mnkine that portion of the original record which is required to be typewritten, 5,180
RATE
i-1
5O¢
5O¢

1 I:
2O¢ per 100 words 10 36
189
App.2
War Department, Form 388a (revised)
D. O. Voueher No. __• ….__ WAR DEPARTMENT Bureau No c.
PUBLIC VOUCHER-PERSONAL SERVICES
>AID BY
Compensationjor Civilian Witness and/or
Reporter, Civilian, or Enlisted lIIan on Detail

TmJ UNITED STATES) Dr., ._
To .r1!!:!IlJl__ T._J!.c.s!lr~ey . ._~ _
(Forl;Uleo(Pllylrol’O.mee)
ArIdress __.No.L__~.:_N~lLWIl stllrn_.Ap_t.e…__Co1umbia.._s.__C.____ _ _
For tra.vel performed. services rendered, and/or per diem in lieu of subsim.:l.ee as: * 0 WITNESS; IX! REPORTER. CIVILIAN; 0 ltEPORTER-ENLISTED MAN on detail. appearing before:
.——..-~!”!!1.-‘!J,-QQ~-Ll#l~ti~J—————-c———.——-at -FQrj;_.Jal:.1tJlon.._J~;-C…:..—–.————-;­
or giving deposi~ion before ———————–(N-,:;;.-;j;i;;;..-;–..—_._.——-_. at _._._._. .__.~)-…-.._-_-__ .~ Date _
~:~o~:~~~~~~:~~~~~~=~:~:i~~~~;::;~~:~;;;;::~=:::=~:::=:::’::::=:==:::::=:::==:=:=:=::

Dates of attendance ._7._.Decemb.er__.19_43._.and._.lQ_Jlacember_.19.43 —————————Discbnrged {‘om fu,the< attendance , ~115__. .. 1Q_.Dece”‘bar__1943 _
(11_,
\0…)
(Attach certl1led copy 01 order convening tbo court nnd or tbo subpena)
AMOUNT
DOL1.AI\~~
For travel from .O_Ql~)ll.~ _$.,.._C.•._:’..–.-to _ZO.r.IL.J.~~ao..:n S -C and return. 8 _ __
~.4 •••••••••
:~=~=~===~=~~~~~ :~~:s ::~~~~~.~.~~.=~::~~~.~ :::v:~~eg.~.~:;-;~~::i:;.;;~~~~::e:ro~t::~:n:~~~~=::=~:~~~~~ ~~~~~~~:~~ ~~~~~~~~~
~._ •. ._••••_._•• da}·s attendance at s….._5..o.o…. per day.•..•.•_..••..•………..•…..•.•..—••••-.—-._••.•.•….•_••••.•. _..•.10.__ –..00.. . :••_._._~. ~_ .••_.~ days at 8 _…..•.. per diem in lieu or 5ubsistence_•. •.•..•~ ,.•.-.-..•~.-.•••••–••••••••••• •. • •••••••••• Additional allowances for reporting as itemized on the reverse hercof…•.._._…•..•_._._._………..•..••..•••.._•••.••. ~~
A:o.IOUNT CLAl~fED_.,•••••••••••”………. $.-24__ ._06—–­

(Payee “,m NOT uso this siaace)
Differences__J._._.__ _. .._.._._ _ ..•_..__•
Account verified; correct for_… $.•_.•••…..••.._••
James T. l~cSor1e:r
(Signature or initials)_.._._.. •….•.•. ~. __•__•__•
13 Dec 1943 -Reporter
24;06
MEMORANDUM

13 Dec 1943
Memorandum, 13 Dec 1943
App.~
ITEMIZED SCHEDULE OF ALLOWANCES CLAIMED
RATS
AMOUNT
CHARACTER OP BERVIOE8 RENDEREDDATE
Reporting GCM CBse of Pvt. Lennie O. Bark,
Co. A., 128th Inf., Fort Jackson, S. C.,
GCM aptd by par. 1, S. O. 261, Bq, 29th
Inf. Div., 18 sept. 43.

50

5O¢
1 hour actually spent In court (1930-3n5)
7 Dec 1943
I

1

00
SO¢
2 hours (0900-1115) actua1l1 epent !n court1o Dec 1943

For trAnseribitll: notes ancl. for making thAt
portion of the original record which is

20¢ per 100
required to be typewritten, 5,180

36

to
words
I

—j
empty cell
86

I 11

TOTAL,
I

App.2
IRANSlJITTAL OF RECORD BY TRIAL JUOOE ADVOCATE
(Leave the space above ~~s line for binding)

Fort Jackson, S. C. (Place)
1…3,”-,De=c”,em::::b;:.::e…r__~194J__
201 Bark, Lennie 0 (00) (Name of accused, last name first)
SUbject: Transmittal of Record of Trial.
To: Commanding General, 29th Infantrv DiVision, Fort Jackson, S. C.
Pursuant to paragraph 85c, I4CM, there are transmitted harewith the record of trial and accompanying papers in the case of Pvt Lennie O. Bark, cq A, 12Sth Inf. (Grade, name and organization of accused)
Signature of Howard Hitchings
HOWARD J. HITCHINGS (Name typed)
Msj. Inf (Grade and branch) Trial Judge Advocate,
L     Incl. Record of t::tel and ·accompanying papers.
App.~
RECORD OF TRIAL
(Proper)
of
__._. ._.krk–I.ennle O. –20Ml12M… _ (Last name) (Fint name aDd middle initial) (Army serial No.)
prJ va t e —-. .cD~,….l2flth..Il:I!4n.t~-.–r (Grade) (Organization)·
•._._.]’Qr.t._..tackaan.-S-.e–_
(Station)
By
GENERAL COURT MARTIAL
AppointeJ by tbe CommanJing Officer
___________ 29_th._ln.f.all.t.r;v:_.lli.vis.1.an  •.•_
Tried at
_. __.F.o.r.t__..rack!\Il:l~._s… ..Q£  •  •  ____7._.Illl_l:_.l\nd.__ lQ_.Dll~  •__, 19-:13–­

Index
Page
Arraignment : . .
.A._. _
Pleas ——————————————————————I——.–a———­
~~;j~;~~~=~:~~~~=:;~-~=~=:~~~==~~;~~J:~~=-=

TESTIMONY
NAME OF WITNESS Direct Cross Redirect Recross Court Recalled
————1–;:————­
P(Jg~ Page Page Page Page Page
._SClith+__lsJ<__Lt£+__JDhn. . 6. ‘:” “‘ =–:: :: . __WilCl/• __HaJor+_.ArtJmr__ .r~ . 7 ‘:” ,, = ::… ,, _ .Loganb:t+__lBJ<__Lt.+__Jo.e__ B.. .9 ,, ,, :,, ..:= ••
~Q
..Pitch+__Sgt.+__L9ster__ B.. li li = ,, l2… .=_._.. _-Sellins+__Sgt• .,. __Charl.es. __. ~3 ,, ,, ,, .,,.
~2
App. f3
EXHIBITS, ETC., APPENDED
D,,,,;p,,on I Numb” r:,’io,fu~~d
::E~~;~~~~~i~~~~~!~~!£:::::::::::::::::::::::::::::::::
:::::::::::::::::::::::!.::::~:::::.,.::::ti:::::
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::I·::::::::::::~
::::::::::::::::
-_.__ _———————..——————————–.——­
_——–.­
RECEIPT FOR COPY OF RECORD
I hereby acknowledge receipt of a carbon copy of the above described record of trial, delivered to me at FJu·.LJ.Mk$.01l. .liQ.uth..C.<>,l:o.11n!L , .
_  __
this  13th  day of  .lle.c.amblll:  , 19…4.3._
~~.(f2 .._..’1l.~._
J&-3enS-1  (Signature of accused)

App.93
PROCl!JE])I;.II}S OF A GENERAL COURT l'(‘\..’1.TIAL
which convened at~2:l_J.:B£!sson, So~..Q!!;_o_lina_..__-1″‘rsuant to the
following oruer_:

HEADQUARTERS 29TH INFAllTRY DIVISION Fort Jack.o’l, Sout!l Carolina
lB September 1943
Special Or<l.ers)
:
No. 261)
1. A GOM i. aptd to mest at Fort Jaclcson. S. C., at 1900 on ro Sept 43, or a••oon thereafter as practicable, for the trial of such persons a. maT properly be brought before it:
DETAIL EOR THE COURT
LT COL WALKER E. UPCHURCH, 024163, 116th In:t’ MAJ I~ L. HAWKINS, 0311262, 13l.t Eng Bn, Law Member CAPT LQWRIE D. CORY, 03016B7, lB<ld QI>I Co 1ST LT .fu:RTLEY VAN XLEEK JR•• 046123B, ll6th In:t’ 1ST LT PHILLIP C. SMASIlEY, 0631201, l28th Inf 1ST LT ELIHU B. ‘STALK, 0634812, 230th FA Bn 2D LT GEORGE, S. TROUTLINE, 0486rol, Hq Co, 29th Inf Div 2D LT PAUL H. \lENTE, 0516236, 128th Inf
ll.AJ HOWARD J. HITCHINGS, 0341266, Rq 29th Inf Div, Trial JA 1ST LT CLEM G. McWAIN, 0496822, 116th In:t’, Asst Trial JA
IlAJ THOKAS I. TRlJEBLOOD, 0201366, 128th Inf, Def Counsel 1ST LT HARRISON PROUDEOOT, 038699B, 193d FA :Bn, ABet Def Counsel
.
All unarraigned cases in the hand. of the Trial JA of GeM aptd .by par lB, SO 161, this Hq, 10 June 43, will be brought to trial before the court hereby aptd•
By cOllll!lalld of Major General SAMSON:
G. H. ‘SMOTHERS Col GSC C of S
OmCIAL: / …-/J
(~?7.~~
tlJEiEifyWJi’ERTOLI
Maj AGD
Adj Gen.

page 1
195
6322600 -45~-14
App.~
READ~UARTERS 29TH INFANTRY DIVISION
FOrt Jackson, South carolina.

30 September 1943
Special Order~ No. 273
.. .. .. ….
11. CAPT ODELL W. ~!OOLLEY, 0316622. 116th In! is detailed as a member of the GCM aptd by par 1, SO 261, this Hq, dated 16 Sept 43 vice CAPT LOWRIE D. CORY, 0301667, 162d QM Co reld.
• .. ..• ••
By command of Major General S~~ON:
G. If. SMOTllER$ Col GSC C of 5
OFFICIAL:
~V//~~
JEFFREY W. BERTOLI
J.le.j AGD
Adj Gen.

App. f3
_.!art..Ja.ckson,..S.oJJ.th..cc,rol1na. ._
«l’I”lc~’)
7 December………………..• 19..4:4

(DOled
ORGANIZATION OF THE COURT
‘rh,’ COllrt mct pursuant to the foregoing order at 193:)•.__._._. o’clock _ M.
PRESENT
Lt Col Walker E. Upchurch, 118th In1′
Maj Mnrk L. Rnwkins, 131st Eng En, Law Member’
Capt Odell W. Woolley, 116th In1′
1st Lt Hartley Van Kleek, .Tr, 116th In1′
lot Lt Phillip C. smashey, 128th Inf
1st Lt Ellhu :e. Stalk, 230th FA :en
2d Lt paul H. Wente, 128th In1′
Maj Howard J. Hitchings, Hq 29th In! Div, Trial JA
Maj Thoma. I. Trueblood, 128th Inf, De! Counsel 1st Lt Harrison Proudfoot, 193d FA :en, As.t De1′ Counsel
ABSENT
2d Lt George S. Troutline, Rq Co, 29th In! Div (Excused by appointing authority) 1st Lt Clee G. McWain, 116th In!, Asst Trial JA (Change’ of station)
The court proceeded to the trial of p.rl,m.t-“-.Lenn1.11..0~.~rk–__
{Grade} (Name)
__ ~4gJ.~~ _._ _ _.. _._. C_QE’l?!1o!’.Y…A,__ Jg§~Q._J_!!;t:!!))_~!’Y. _
(Army serial number) (Organization)
who, on appearing before the court, wasasked by the trial judge advocate whom he desired to introduce as counsel.
Reco,d of I,ial GCM.
S.e appendix 6, MCM. Page 2
197
App.2
The accused stated he desired to be defended by the defense counsel and the assistant d,efense counsel•
.,rl\!llll!l..T&..Hl:SllrlB7 was aw.orn as reporter.
PROSECUTION TO ACCUSED: Do you want a copy of the .r.e.cord…oi..y=..trial ?
ACCUSED: ~..dll•…………………………………………………………………………………………………….

The trial judge advocate then announced the names of the members of the court _._pr.B.l!.en.t and absent.
The trial judge advocate then announced the names of the accuser, the investigating officer, officers who forwarded the charges and any members of the court who would be called as witnesses for the prosecution as follows: The charges were preferred by”
J’irst LieutenMt Joe ~. Loganby, investigated by First Lieutenant Leland V. 1II’eeland, and fOrwRrded by Colonel llarner E. SI<inburne, and no meI:lber of the court will be a witness for the prosecution.
PROSECUTION: If any member of the court is aware of any facts which he believes to be a ground of challenge by either side against any member, it is requested he state such facts.
PRESIDENT: Apparently there are none.
PROSECUTION: The prosecution has no _ challenges, for cause but challenges Captain Odell W. Woolley peremptorily.
captain Woolley was excused and withdrew.
PROSECUTION TO ACCUSED: You now have the right to challllngll any member or members of the court for cause, and anyone member, other than the law member, peremptorily.
DEFENSE: .!rhB..dllf8llJlll..challllnges..lat..L.t..1′.hUllll..Q&..S[!!n!lb!l:r…f!1T….~)l..~~.•.Q.tl.• the ground that he has expressed a positive and dsfinits opinion as to the guilt of ths accused on ths original chnrge.
1st LT SM!SHEY: It is true that I was in Company A, I28th.Infantry, during the time of the alleged offense and discussed tbe charge but I have no clear recol~ection of the details of the case or of expressing an opinion as to the guilt of the accused. However, it is psrfectly possible that I might have ex­pressed such an opinion•
.PRESIDENT: The court will be closed.
The challenged member Withdrew, the court w~s closed and voted upon the challenge by secret written ballot, and upon being opened, the nresident announced that the challenge wns sustained and the challenged member thereupon withdrew.
. The &<lcused was then asked if he objected to any other meI:lber present, to which he replied in the nemtive.
Reeo,t! 01 Ilia/ GCM.
See oppent!iK 6 ont!AW19 (p.207),MCM. Page 3

App.~
The members of the court and the personnel of the prosecution were then … e.i>’Q.tn .,,”
ARRAIGNMENT
The accused was then arraigned upon’ the following charges and specifications:
CHARGE : Violation of the _…..!!~~!!… … Article of War.
SPECIFICATION : In that, .1’~1’1′:l\te..Lell!l11′..Q•..ll’\l:1′;, ..CQIllP!lJlY..A…12.8.th..Infant!7, having received a lawful commandfroD First Lieutenant Joe R. Loganby, hie ~\­perlor officer, to report on the drill field for duty, did, at ~rt Jackeon, ~outh Carolina, on or about 28 September 1943, willfully disobey the eame.
CHARGE II: Violation of the 69th Article of War.
Specification: In that Private Lennie O. Bark, CoopanyA, 128th Infant!7, having been duly placed in confinement in the 128th Infantry Guardhouee, ~rt Jackeon, South Carolina, on or about 28 September 1943, did, at Fort Jackeon, South Carolina, on or about 28 September 1943, escape from said confinement before he vae set at liberty by proper authority.
CHARGE III: Violation of the 68th Article of War.
Specification: In that Private Lennie O. Bark, Company A, 128th Infant!7, did, at l”Ort Jackson, South Carolina, on or about 28 September 1943, deeert the 8ervice of the ‘~ited Statee and did remain absent in desertion until he wae apprehended at Char1eeton, South carolina, on or about 26 November 1943.
Record 01 Iriol GeM.
s.. oppe«di. 6 ondAW 19 (p.207},MCM. Pase 4

199
‘App.~
I./–.–..Joe-L .Lo~ ……..•.•~

(Signature of accuser (TVPED») .
…… …JOE..R. LO.GAmlY..
(Name (TYPED»)
:l$.t Lt. 1.26th.Inf
(Grad,’, organization, or arm Uf service)
AFFIDAVIT
Before me, the undersigned, authorized by law to administer oaths in cases of this character, personally appeared the above-named accuser, this .. 27.th _ day of _ .!lo:o:embu.__ _. , 19..43., and made oath that he is a person subject to military law and that he personally signed the foregoing charges and specifications, and further that he *has personal knowledge of the matters set forth in specificationt _ ot_.Charge..! _..
(Indicate by specification
………………… _; and *has investigated the matters set forth in specifications

and chal’ge numlJcrs)
..Q.:f <:bA~.&e.s. IL<>.!ld..UI…__ _ _, and that the same are true
(llldicatc br$IJl’cifkation and charge numbers)
in fact, to the best of his knowledge and belief.
1·1 .llxad1~ ..M….Mc.G1n.t7.._. __.._••.••._
(Signature (TYPED»
•.•••••………_._.ll1lAIILEY._H…y”GInY:….._. __._..•.•

{Name (nPEo»
……………__._..cap_t.,_.J..28th.Inf.. ~ __ .

(Gr.ade and Ol-ganization)
…….__.. .AdJutanL _ .._ _'”

(Official character, as summarr court, notary public, etc.)
1st IND.
Headquarters _29.th..lnf__D1.v _.__ 0._•.•..•, J!’or.t..Jacks.o.n._._., 5.__.c..__~.ne.c._ ,.1943..
(PlaC”l”) (D3te)
Referred for trial to _..Maj.Ro.vard..J>..Hi tching••.1lq..29th..Inf..D1’l __._ _
(Grade, narnC’, and organization of trial judge advocate)
Trial Judge Advocate of genenil court-martial appointed by paragraph _._…1…._._.._, Special
~r?:~:~~~i~t~a.;}~~td1~~r~;~c~iho~;r~~o;···Jg;-s~~~~:~ter.··29tid:~~~iv.
‘BY commana or .MBJ-o.r…Ge.neral..sA.MSON: _. __ __ __ __ _•..••
(Grade and name or commanding officer)
I./.. .._ .l:effrey..W•.BertolL , Adjutant. JEFFREY If. BERTOLI .:J:he….eettseft-tfi€R-l’le&<Ie<I-es-fellews-; Naj. AGD Adjutant General
.:fe.~.~.~.~.~..,.~.~.-~eifiGa.tion_~.~.-_~_. TCI>ar_§0_-_—~;..
+e.~.~”._”””.~.-Cf>arg<l-._._._~._._._._ ..
DEFENSE: The action. and demeanor of the accused during the pa.t·few day. have rai.ed a doubt in ~ mind as to his existing mental condition. He has behaved peculiarly and I have been unable to get him to cooperate prope~ly in the preparation of hi. defen.e. Whether his conduct is due to an unstable mental condition I have b••n unable to determine. In the interest of justice I believe that the court .hould inquire into hi. mental condition. I now desire to call a witne•• in .upport of the .ta~ement I have ju.t made and then to move that the court recommend to the appointing authority that the mental condition of accu.ed be inquired into and a report made, and that pending .uch inquiry the court ad­journ to meet again at the call of the president•
.LAW MallIER: SUbject to objection by any meeber the witness ron.y be calledA
let Lieutenant John smith. 128th Infantry, a witne.s for the defen.e ‘.a. sworn and te.tified as follows:
–‘-Stl’ik;out phrase not applicaule.·
Record 01 Iriol GCM.
Se.appendices 3and 6, MCM. Poge 5

App.93
Q;I1estions by Prosecution:
Q. State your name. ~ade, organization nnd station.
A. John Smith, First Lieutenant, 128th,Inf~ntry, ~ort Jackson. S. C.
Q. Do you know ths accused? If so, state his name.
A. I do, Lennie O. Rark.
Q. Is he in the military service of the United States?
A. Yes, sir.
~ What is his grade and organizatiOlI?
A. Private, Company A, 128th’Infnntry,
Q;I1estione by Defense:
Q. How long have you known him?
A. Since September 28th 1943.
Q. ,~at has been your relation to the accused since that date?
A.     I 8J:l the prison officer of the 128th Infantry and the accused was con­fined in the regimsnta1 guardhouse, which is under my jurisdiction.
Q.     Have you observed the actions and demeanor of the accused during his confinemsnt?
A. I have.
Q. state what you observed.
A.     The actions and demeanor of the accused have been out of the ordinary. He has been sullen and morose. has shown no interest in “,hat goes on about him and has failed to cooperate with hie 00’1I\se1 in prepar­ing his case for trial. He has been erratic in his actions nnd unreliable in his work.
DE)l’ll:JIS’:: I renel< my motion for an adjournJ:lent and a recommendation by the court to the appointing authority for examination of accused by a medical bonrd or officer to inquire into and give a report on the mental cond! tion of the accused.
LA’,~ ~ro.mE1l: Subject to objection by any member of the court the motion of the def”nsc counsel is granted.
~e court then at ro15 on 4 December 1943, adjourned to meet at’ the r call’ of the president,
~~.~
HOWARD J. HITCHINGS Major, Hq. 29th Inf. Div. Trial Judge Advocate.
Fort Jackson, south carolina
10 December 1943
The court met, pursuant to adjournment at 0900, all the personnel of the court, prosecution and defense, who vere present at the close of} the previous session in this case, being present.
Page 6
201
App. f3
The “coussd and reporter were also present.
PROS~CUTIon: Second Lieutenant George S. Troutline, who was deteiled es.a menber of the court in the appointing order, i.” now present. The prosecution does not che.llen~ him. The accused now has an opportunity to exercise his rights as to ohallenge,for cause or pereniptor:11y, to Lie~tenant Troutline.
DEFENS~: The aocused does not desire to ohallenge Lieutenant
Tro·,tline, either for onuse or lJerem,torily.

Li..,tenant TroutHne was sworn as a member of the oourt.
The reoord of proceeding. of 7 Deoember 1943 in this case was then
read to the new member.

PROSECUTIon: After the adjournment of the oourt on 7 December 1943, the appointing authority at tho request of the oourt, appointed I~ajor Arthur J. Wiley, Medical Corps, psychiatrist for 29th Infantry Division, to inquire into and report on the mental oondition of the aocused. The major is now available as a witness.
PHESIDl!:NT: Major Wiley will be called as a witness.
Major Arthur J. ~iley, Medionl Corps, a witness for the oourt was
sworn and testified as follows:

DI HECT EXAM! NATIOn
~estions by proseoution:
Q. State your name, grade, organizatlon and station.
A.     Arthur J. ~iley, Major; Medical Corps, 29th Infantry Division, Fort
Jackson, South Carolina. am division psychiatrist.

Q. Do you lenow the aocused1 If so, state his name.
A. I do; Lennie O. Bark.
Q. Is he in militnry servioe of the United states:
A. He is.
Q. What is his grade and organization1
A. Private, Company A, 128th Infantry.
Q.     Directing your attention to the period between 7 Deoember and 9 Deoembe~ 1943 state whether or not you saw the aocused during that period.
A. Yes, I saw him several times.
Q.     Did you during that period have oooadon to examine the aooused with
referenoe to his mental oondition1

A. Yes, 9ir.
Q.     Mayor, based upon your examination, what 11 your opinion a. to the present mental oondition of the aocused1
A.     The aooused i. now mentally sound and able to intelligently cooperate in his own defen.e.
~. In your opinion at the tims of the alleged offenses did the aooused know the differenoe between right and wrong1
A. Yea, sir.
App.3
At that time vas the accused in your opinion able to adhere to the right?
~.
A. Yes. sir.
The defense declined to cross-examine the witness.
There being no further questions. the witness was excused and
withdrew.

DEF!NSE: We have no evidence to present on the mental issue.
LAW ~HB:c:R: Subject to··objection by any member of the court. it 11
the ruling of the law member that at the time!, ·of the colllJ:lisaion of the
several offenses charged and at the ,resent Ume. the accused is not
suffering from any mental disease or defect. can distinguish between
right and wrong and adhere to the right, and that tho trial proceed.

PROSECUTION: Has accused any special ple,as to offer?
DEFENSE: No, sir.
PRESI:JENT: The accused will plead to the gCneral issue.
The ac”,:sed pleaded as follows:
To the Specification, Charge to Not Guilty.’
To Char&8 I: Not Guilty.
To the Specification, Charge IIi Guilty. .
To. ChBrge II: Guilty.
To the Specification, Charge III: Guilty, except the words “desert” and “in desertion”, substituting therefor, respectively. the wo,.ds “absent
himself without leave. from” and “without leave”, of the excepted \lords not
guilty, of the substituted words r,uilty.
To Charge III: Not guilty, but gUilty of violation of the 51st Article of War.
PRESIDENT: The la\l member “ill explmn to the accused the nreaning and effect of his ‘;llea of p,’llilty to speeification of Charge II and Cha,.ge II, and of his ,lea of euilty to absence without leave and violation of the 51st Arti cle of 1·rar under Charge III and its specification.•
The law member explained to the aCC”R”d the effect of his pleas of guilty.
PRESIDENT: Do you still desire to plead guilty to specification of Charge II and Charge II and to absence without leave in violation of the 51st Article of War under Charge III and· its specification.
ACCUSED: Yes, sir.
page a
203
App, 2
By direction of the court the following matters we~e read to the court by the trial judge advocate, to wit: None.
The _trla.l..j.udge…MY.QQl’t.II….._•.••….. __._. •. .• then made _!!-.’J..__ opening statement to the court.
TESTIMONY FOR THE PROSECUTION
__..b.~..I&1Q.!’–!l,..J&/!!!!!.q:is_J)I1__ ~..__ .+_?~.~))…J.I).J , a witness for the prosecutiolt. was sworn and testified as follows:
DIRECT EXAMINATION
Questions by prosecution:
Q. State your full name, grade, organization, and station.
A. ..JD.e..R~ ..LQgWlby…..lBLL-t.–~o-.A,–l21lt-h.-lll;(‘ …]’QT.J;…r.MJ!:.@!1n….i;l.•••P.•..__.•_
Q. Do you know the accused? If so, state his name: ­
A. I do; .Lannie..O•._Bark._ _ _ _. _._.._ _ _.._~
Q. Is he in the military service of the United States?
A. …..yea•..Sir… ….
Q. What is his grade and organization?
A. J~r.!y.~!!!!s ..Q!1!lJE!!!!:i..~ +.?~.~_I), __I:<‘_f~.~.q _ _ –‘ __
Record 01 trial GCM. Seeopp.ndix6andAW 19 (p.207}, MCM. Page ~9
App.2
\~t     is yo’,r official connection Idth Compall7 A, ll!8th InflUltr:rt
I am Compall7 Commander.     ‘
How lonr, have you been the cOl1lJll!lllding offieel’ of Company A, l28th Infant-i-y?
A. Since 15 Auguet 1943.
Q.. Lieutenant’Loganby, did you have occl1siol1 to Bee the accused, Private Bark. on 28 september 19431
A. Yes, sir.
What were the circumstances?
Well ell’, on the morning of the 28th at about 0830, the charge of quarters c:o.me into the orderly room and said that !lark wae down in the latrine. The ccllll)!lny wae out drilling at the time.
DEFENSE; Objection. What anyone told this wi tnees outside of the
presence of the accused is heareay.
LAW MEMBER: Objection suetained. The anewer will be stricken.
q,. Just state what happened.
A.     Well, I told the charge of quarters to go down and bring Bark up to
the orderly room, and in a few minutes he was broUfpt up.

Q.. State what was said if anything by you to the accused when he CIUlle to the orderly room.
A. I said, “You get out on the drill field right now.”
Q.. Flow far were you from the accus,ed at that time?
A. I would say about five feet. He was Just across my desk from me.
~. In what tone of voice did you speak to him?
A. A little louder than I em speaking now.
Q.. What~ if anything, did he say or do in reply?
A.     He said “No, I won’e. I don’t intend to work any more while I om ‘in
the Army.”

Q.. What else if anything did he say?
A. He said that he didn’t like the way the Army I”as run.
Q.. Tell the court whether the accused obeyed your command.
A. FIe did not. He just stood there and said what I already told you.
Q.. What did you do next?
‘A. I orderen. him placed in confinement in the l28th Inf;mtry guardhouse.

CROSS ~IINATION
~estions by defense:
Q.. Didn’t the accused say that he wanted to fighU
A. Yee, ~dr.
Q.. 1’/hat did he say on ‘the 28th in that connection?
He said that he didn’t like the way the Army was, run; that he ,Joined the Army to fight and had been setting on the post ‘t”o years, or been here too long: I believe he didn’t say years or months, but that he
Page 10
App.~
had been here too longl 1:1′ he wasnlt gollig to tight, he dldn’t see wIlT he had to work and he dldn’t see any good lnworklng, and he wsn’t golng to work any more.
There belng no further questions the w1tness ws excused and wlth­drew.
Sergeant Lester R. Pitch, Colllp8D7 A, 128th Infant,.,., lort Jackson, South Carolina, a w1tneu for the prosecutlon, “”s sworn and testifled as follon:
DIRECT EXAMIllATION
~estlons by prosecutlon:
~. State your name, grade, organlsation and station.
A.     Lester R. Pitch. Sergeant, ColllplUlY A, 128·th Infantry, Fort’ Jackeon,
South Carolina.

Q. Do you know the accueed, If so. state hls name.
A. Yes, 811′. He’s Lennie Bark.
Q. Is he in the mUlta,.,. eervice’
A. Yes, sir.
Q. What 10 hie grade and organization’
A. He 19 a private in our organization, Company A, 128th Infantry.
Q.     Were you on duty w1th Company A. 128th Infantry, on the mornlng of
28 September 1943′

A. Yes, sir.
Q. Where’
A. In ths company orderly room. was ln charge of quarters.
Q. Dld you sse the accused that morning?
A. Yes, slr.
Q. Were you pressnt when the company eommnder gave hlm an order’
A. Yes, sir.
Q. What. lf anythlng, dld the company commander say to the accused’
A. He told hlm to get right out on the drill field.
Q. Dld he obey the Lleutenant’s order’
A. He dld not, slr.
Q.     What. 1f anythlng, dld the accused say to Lieutenant Loganby in response to hls command’
A.     He said he wasn’t going to work and that the Army “”s all imagination and he didn’t like the way 1t “as run.
CROSS :s:xAMINATION
~estions by defense:
Q.     Did the accused lII!lke any attempt to or start to OIlrry out the order that you say you heard the commnding officer dve hlm?
A.     Well, 9ir. he hesitated just a moment and then sRld he refused to do it.
Page 11
App.’2
Q.. To whom did he make this statement!
A. To Lieutenant Lo~by, sir.
Q.. Were you present when the accused made etBtements to Lieutenant Loganby about wanting to fight? What “ere they?
A.     Yes, Air. He said that he joined the Army to figi:lt and that he was willing to fight if he CQuld ~ across, but he didn’t intend to work tl:ny more ae long as he stayed here; that he “as tired of working.
llXAHINATION BY THE COURT
Q.. Where were you in the orderly room in reference to Lieutenant Loc;onby’e office?
A. Just outside the door, approximately five feet from Bark.
There being no further questions the witness wos excused nnd I<1thdrew.
PROSECUTION; (After shol<1ng dOCUJllent to defense) The prosecution
offers into evidence as Prosecution’s ~ibit 1 nn extract copy of the
morning report of Co~ny A, 128th Infantry. duly authenticated by its
commander and legal custodian, 1st Lt. Joe R. Loganby, for the months of
September and November, 1943, containing entrios concerning the accused.

DE~lSE: Objected to as not the best evidence e~d henrsay. The
original should be !,roduced. Also the cOJ”P”ny com:nander who testified a
few minutes ago could have been examined concerninc; the entries.

LAU HEl~ER: Objection overruled. The document is admitted into
evidence and marked Prosecution’s Exhibit 1.

PROSECUTION: (After showinlJ: document to defense) The ,ro.ecutlon
next offers into evidence as Proeecution’s Exhibit 2 an extract co!’y of
the guard.reports of the 128th Infantry duly authenticated by the
reP,imental adjutant, its legal custodian, for the months of Se!’tember and
November, 1943, containinc; .entries concerning the accused.

DEFENSE: Same objection.
LA~·r If~·!IlER: Overruled. The dOCUl!lent 1<111 be admitted and marked Prosecution’s ~~ibit 2.
Sergeant Charles Sellina, 1650th Service Unit, Military police
Detach~ent, a witness for the prosecution, wnssworn and testified as
follows:

DIRECT EXAHI&\TION
~estions by prosecution:
Q. State your name, grade, organization and station.
A.     Charles Sellins, Sergeant, 1650th Service Unit, H. P. DetachJ:Ient. Charleston. ~outhCarolina.
Q.. Do you know the accused? If so, state his name.
A. I do. Lennie O. Bark, Company A, 128th Infantry.
~. lfuat is your present duty assic;nn:ent7
A. On military police duty, Charleston. South carolina.
page 12
207

· App.13
Q.. Tell the court how you know this accused.
~. On the morning of 26 November 1943, I wn. on patrol duty in Charleston, South Carolina. I saw tho ac~,sed walking up the street ina dirtf unifortn. I stopped him end asked him for hi. pes.. He said he didn’t have one. I asked him for a furlou~” and he said he hadnI tone. Then he told me that he came into the A~y to fight Ilnd they woUldn’t let him fight so he wasn’t going bael: to the Army end work.
DEFENSE: I move that the statement made by the ac~sed to Sergeant Sellins be stricken out on the ground that it amounts to a confes.ion: that Sergeant Sellins at the time the .tatement ~as Dade was the superior of the accused, and that no warning of his rights wes (;iven to the accused by the Sergeant.
PROSECUTION: Before the la,’ J:lember rules 011 this motion, I deBire to
ask the witness Bome additional questions.

LAW MJ’]·lBBR: You may proceed.
Q.. Did you warn the accuBed of Us rights?
A. 110, sir.
Q.. Did you threaten him?
A. No. sir.
Q.. Did you promise him anything?
A. No, sir.
Q.. How we. this statement made?
A. He made the statement without any urging or any kind on my part.
Q.. ~ didn’t you I18rn him?
A.     lfuen he told me this I didn’t know he was even AWOL. He Just made the statement to me right after I asked him for his furlough papers.
LAW MEMBER: The statemen~ made by the accused to tlie wi tness WIlS voluntary. !the motion to strike is denied.
Q.. Sergeant Se11ins’, then what did 70u do?
A.     I found out he was from Company A of l28th Infantr,’ and took him down to police station.
CROSS EXAMINATION
Q.. The accused was dressed in his uniform, wasn’t he?
A. Yeo, lir.
There beint; nO further queltions, the wi tnels vas 8%cueed and Ifithdrew.
PROSECU’fiON: !the prosecution rests.
DEFENSE: The defense moves for a finding of not gn1lty of the first charge and its specification on the ground that the evidence before the court 11 not let;ally sufficient to BU1′!lOrt a finding of guilty of such charge and specification. One of the elemente of J)roof of willful dis­obedience, as given in paragtoaphl34:!l, ‘Manual for Courte-Martial, 1928 (corrected April 30, 1943), ie that accused wi~ltully disobeyed such command. and thil element has not bien proven in thie caeo. The evidence does not ostabl1eh the guilt of the accused.
Page 13
App.~
LAW MJ!:I.lBERI Subject to objection by any member of the court the de­fense’s motion for a finding of not guilty of the firet charge aad its l!Pec1fication ie denied.
LIEU’rENAll’T WENTE, a memberl object.
PRESIDENT: The court w111 be closed.
The court was closed and upon being opened, the president announced that the motion of the defense for a finding of not guilty of Charge I and its specification was denied.
DEFENSE: The defense hAs explained to the aCCl1sed hie rights as a
witness, and he desires to take the stand and be BVorn as a witness COD­
fining his testimony to Charge I and its specification.

The law msmber at the r9’l1lest of the president again explained to
accused his rights and asked accused what he desired to do.

ACCUSED: I desire to be sworn as a witness and testify only to the
~rge of disobedience of orders.

The accused at hie own request vas therefore BWorn and testified ae
:follows:

DIRECT EXAMINATIOB
~estions by prosecution:
~. State your name, grade, organization and station.
A. Lsnnis O. Bark, Company A, 128th Infantry, Fort Jackson, S.C., Privats.
~. Are you the accused in this case’
A. Yes, sir.
~estions by the defensel
~. Private Bark, I want you to tell the court exactly what happened on
28 September that concerns this charge before the court.

A.     TJuit morning we had the usual routine and I was detailed to drive a truck into Columbia, _South Carol1ila, which isn’t ‘very far from “Camp.
~. Then what happened’
A.     I drovs to Columbia and returned in about half an hour and when I got back, I came and picked up the rake and started raking company street, at the time I was caught on the company street vith my rake in my hand. This was reported to Lieutenant LOg<‘llby, and he eent a sergeant down and ordered me to roll a wheelbarrow up and Aiown company street full of dirt, and I rolled the wheelbarrow up to the orderly room and got permiseion to ses the company coJDllll.nder. I went and talked to him and told him I “”s willing to work in another branch of the service if I could get transferred across seas, if I could get that.
~. Did Lieutenant Loganby tell you to go out on the fteld’
A.     Not that day, sir”, I don’t think. No, sir, not that day. He gave me orders to roll the wheelbarrow up and down the company street.
~. What did you tell Lieutenant Loganby about wanting to go oversea;’ and fight’
A.     I told him I had been in the company long enough to get a chance to fight.
~ Do you “”lIt to go across seas .now and ~ight1
A. Yes, sir.
Page 14
209
‘App. OJ
CROSS EXAMINATION
~e.tion. by nro.ecution:
Q.. Now you haven I t told the court what you told the Lieutenant when ‘yoU went into the orderly room. Did you tell him you weren’t going to work anymore as long ItS you were in the Army?
A. Not like that.
Well what did you tell him? I was intendin& to work. I would if I was in a different branch of the semce I would like to wdrk.
Q.. What branch of the service were you talking about?
A. Noncombatant.
Q.. I thought you told the court a few minute. ago you didn’t want to work but you 1I8J1ted to fight.
A. I do. aIr.
Q. You don’t want to go to noncombatant troops, then?
A. lIo. sir, not if I can go across seaa.
Examination by the court:
Q. What were you doing in Charleston, South Carolina on 26 November 1943?
DEl’ElISlI:: 1he defense objects to that question. The accused hes lim­ited his testi…ny to the fir.t charge and specification and did not give any t’estimony with reference to Charleston on the 26th of November and it does not have a bearing upon the testimon.v of the witness on direct 8%&JIl1 nation.
LAW IlEMBlCRl A member of the court ~ ask the accused only those questions that would have been admissible on cross-examination by the prosecution. This question relates to an offense not testified by accused. Objection sttstmned.
There being no fUrther questions the witness was excused.
DlI:!’ENSlI::, It is stipulated by and between the prosecution, defense and accused that if Captain William E. Shannahan, Compnny C, 128th Infantry, verepresent in court and sworn as a witness. he would testify thet he vas the cOlllpany commander of the accused from 23 November 1942 to the 3)th of J\11y, 1943, that vhile the accused was under his coounand hiB character was excellent, that he never had any trouble ,fitll accused at all.
PROSECUTIONI I agree to this stipulation.
LAW IlEMBER: Subject to the o’bJection of any member of the court, the stipulation will be accepted.
DEl’ENSlI:: The defenet. rests.
The pro~ecution announced that it had no further testimony to offer.
The defense had no fUrther testimony’to offer.
Oral arguments were then made by the defense and prosecution.
Page 15
App.~
FINDINGS
Neither the prosecution nor the defense having anything further to offer, the court WlllI closed and voted in t~e manner prescribed in Articles of War 3l and 43. Upon ……Il!ls;l:!lL ~ written ballol, t.w.o”.t.b.ix.d of the members present at the time the vote was taken concurring in each findil)g of guilty, the cOlut finds -the accused: .
Of all Specifications and Chnrges: Guilty.
PREVIOUS CONVICTIONS, ETC.
The court was opened and the \rial judge advocate stated, in the presence of the accused and his counsel, that he had …..~.QJ!l.!L ……•. evidence of previous convictions, which
(Noocsomc)
was read to the court and is attached as Exhibit …g…•.••
(Cross out if inappropriate)
The trial judge advocate read the data as to age, pay, service, and data as to restraint of accused as shown on the charge sheet as follows:
Age .21..5/.12. Pay, $..OO~DD ….•……._……………………•…………..•….. per month. Allotments to

(Base pay plus pay for length of service)
dependents, $ClB..a….F..$22LO’O…. per month.
Government insurance deduction, $ Jl:Q.!\!l.•.•••……•..• per month.
Data as to service: Bo..pr.iJ)r…ae.r:.vi.c.e.L….Enll.at.e.d…Clw.l:le.~.t.o.n •..S&..C&&..!m..lg..1lQY!l!!l.Q~r

1940 for three year.. Service extended by Servicell:l:tenoion
Act of 1941.
Accused: Ye.~ Bir.
(leconl 0’/riol GCM..
See oppendix 6. MCM. Page .l!t.
211
632260°–45—-15
App.1J
SENTENCE
The court was closed, and upon secret written ballot _.~.1Af.rd.s .of the
members present at the time the vote was taken concurring, sentences the accused to be dishonorably discharged. too service, to forfeit all pay and allowances due or to become due, and to be confined at hard labor, at such place as the ;reviewing authori ty may direct for ten yeare.
The court was opened and the president __.annQUDJ:lll1..__ the findings and sentence.
The court then, at …lll5 o’clock, __ -M., _ ..JlJl-J.O…De.cember Ig.A:L.
~~.dJ.O=e.d ..t.o…mllllt..at..thll…eall…n.f.•.the.preeident.
AUTHENTICATION OF RECORD
~/ ‘-f!–o “”-£J~’_
~._-_ __ !: i~..~ ~-~iJ””
lWlB: L. HAWKING Maj, CE
••_•.•…… .-.—–•••~-.u—_···-···-····:_li;;_~;;:;;.;:_­
A member in lieu of the president
beCBuee of hie abeence.
~() /I/::b.L:”~
_……·jjowAiiii-·J~· ..~mNGS ~”.::;.”:-:.,,,.c'(J­
1/eJ. .lnf _ _ _.._–_
Trial JudI’ Adl)ocal,.
I examined the record before it was authenticated.
_…..~Lr.-L2J<.~ .._..J[;._.~
THOMAS I. TRUEBLOOD _.~J ….J]}! ._.. _
D,/ense COIlJlsd.
R.co,d 01 I,io/ GCM.
S•• oppendice, 6 and 9. MCM. Page ..17.~

App.92
HEADQUARTERS 29TH lliFANTRY DJ:VISIOll
Fort Jackson, South Carolina 15 December 1943
In the foregQL~g case of Private Lennie O.·Bark, 20401234, Company A, l28th Infant~r, the sentence is approved but ‘five years of the confinement imposed are remitted. As thus modified the sentence will be duly executed, but the execution of tha t portion thereof ad­judging dishonorable discharge is su§pended until the soldier’s release from confinement. The Fourth Service Command Rehabilitation Center, Fort Jackson, South Carolina, is designated as the place of confinement.
o{~q.~~.
LEW A. SAlI.SON,
Major General, U.S. Army,
Coml1l!lnding.
213
App.£
..:aark…. .Lennia o . . ~.40.l23..4 __.._. {Le~t narne} (First name) (Middle initial) (Army serial number)’
.••_.. ht ._.• ._Q9._.A..–;J,~~j;h–Ini. •• _
(Grade) (Company, regiment. and arm or service)
EXTllACT COpy OF MORNING REPORT OF­
. C.Q.mp.q._I)..Y-_..&.., • ;J,Z~j;b__In:.5J.:\.t.rY_—_
(Comllany. troop, bnttery, or detachm’3nt) (Regjmenl.ol’ other organization)
28 Sent 43
Bark. Lennie O. 20401234 pvt –
Dy to cont l28th Intgd house awaitingtrial charged with willtul disobedience (AW 64)
Bark. Lennie O. C0401234 Pvt Cont to AWOL 1700
/s/ Joe R. Loganby
1st Lt, Int 26 Nov 43
Bark, Lennie O. C0401234 Pvt AWOL to cont l28th” Int gd house 1400 awaiting trial charged with escape ir cont and desertion.
. /s/ Joe R. Lo~nby
1st Lt, Int.
C_o__A,__12at.h_.I.nf…__FQrt__Ja~kson,–.s….c..——-.-••
(Comj)Jete tlesillnation oC command) (Station) (DnlP)
I,J_Q_(l__.R.__.tQ~np.Y. ..-J•.q.t–L.tJL–Inr–~-~::., ~~tifr
(Nume. grade. ami arm 0:’ ,*fvice) .
that I am the commanding officer of __C_o__A,”__128th .
(Coml);et~ desig~fltion of
._._~nt:. and official custodian of the morning reports
command)
of said command, and that the foregoing is a true and com·
plete copy (including any signature or initials appearing
thereon) of that part of the morning report of said com­
mand submitted at .F..o.rt…Jacksan..__S…._C… .
(Station)
for the dates indicated in said copy which relates to
__._L.(l.r:!-llt\L_O’••.1l_~r.k ..-.ro~l2~ ..–E:yt..–.cj)–4-­
(Full name, Army serial number. gl’odc and organization of perllOD
__.J_ae.th._.I.nf.. ~ . . .__._.. ._._._.__•._._…._..
referred to in extract copy) /’_d P
.._CkP-c–.~-.,–A~-.
r——(Signolure) tl 0­_~_$_t._.Lt. ..–In1:. .••••••. _
(Grode and arm or l’Iervice)
(See AR 81 r;…SOOI
W. D•• A. G. O. For.. No. 44 fO July 1943 16-3G24’7-T u. S. GOVERNMl:NT PRINTIHa O”’Cl!’
PROSECTTTIONS’S EXHIBIT 1
App.~
JIl,tTRACT COPY OF OUARD REPORTS OJ’ 138th Intant17
!lo. • flame  Co •  Regt .,  Confined Authority •  38 Sept 1944 ])l.te • Charge
Confined durln g tour of  37-38 Sept 44.
13  Bark, Lennie O.  A  138th In!  CO  Co A  38 Sept 44  AW 64

Escaped, Garrison Prison’er :Bark, 13. 1700.
26 Nov 44
Reconfinsd, Garrison Prisonsr Bark, 3, 1400.
H~adquarters 138th Infantry, !ort Jackson, S. C., 37 November 1943.
I, Capt Bradley J.l. McGinty, Inf, certify that I am the adjutant ot 138th Inf and official custodian of the guard reports of said command, and that the foregoing is a trlle and cOJ!!p1ete copy of that part of the guard report of said command submitted at Fort Jackson, S. C., for the dates indicated in said copy which relates to Lsnnie O. Bark, 30401234, Pvt, Co A, 128th’Inf.’
~~,lJJ~r7
BRADLJ’lY M. r~cGINTY Capt, Inf Adjutant
PROSECUTION’S EXHIBIT 2
215
App.2
IiECOllD Oli’ PRMOUS CONVICTIONS
EXTRA.CT COPY     OF SERVI CE RECOllD OF
(Last name) Bark·  Pvt (Grade) .00401234Lennie 0 (First name and middle initial)  (Organization) Co A. 128th Inf.
RECOllD Oli’ TRIALS BY COURTS-IWiTIAL

,liSum= ,Cl! 96th AW_-r-3~Ja~n~ua~1″lil-:-:-_..-1943 Drunk and disorderlY (Date of offense) -(Synopsis of specifications)
in camp•
.sentence announced and adjudged 6 January 19~. Ssntence as approved em. for 1 month and forf. $33
~===-:;:~==-;-~==~ -_,,;,_. A,pproved 7 January 19~
I certifY the above is correct.
/s/ Daniel E. OIGara 1st Lt. 12Sth Inf Name, grade and organization psrsonnel Officer
___Cl! Alf__'””=,.-,-_-:-“::”‘:”_……__·.1943 • (No.) (Date of offense) -(S1UOpsis of spscU’ications)
Sentence announced and adju~ed ~19_. Sentence as approved, ….;… -;-==:-;­~=~:::-=:-:=::::_’;”:”_:::==———.Approved,I certifY the above is correot.  ~~­,19_
Name, grade and orgenization

128th Infantrz FOrt Jackson. S. C. 27 November 1943 (Designation of command) (Station) (Date)
I certifY that I am the official custodian of the Service Record of the above-named soldier and that the foregoing is a t1’l1e Cop7 of entries therein relating·to previous conviotions.
Signature of Daniel O’Gara
I ~l!lL E. O’OA.1!A 1st Lt. 12Sth Inf
PROSECUTI01’I EXHIBIT 3
APPENDIX 3
RECORD OF TRIAL BY SPECIAL COURT-MARTIAL

INTRODUCTION
This appendix contains a specimen record of trial by special court­martial as it would be forwarded by the reviewing authority to the officer exercising general court-martial jurisdiction over the command. (See par. 141b, 81tpra.) Suggested forms for a check sheet and chronology sheet have been included, but it should be noted that.the use of these forms is optional and not required.
The record of trial and the special court-martial order have been printed in usual book ·form. When actually prepared, if the special court-martial order and record of trial by special court-martial are typewritten on both sides of the paper, they should be prepared so that the reverse side of each page can be read by turning up the bottom of the page.
App.3
REC~     OF TRIAL of
RentlBnd John M. 36126705
(Last name) .(First name and middle initial) (~ serial number)

Pvt Sv Btry, 359th FA Bn
(Rank)

Fort Sill, Okla.
359th Field Artillery Battalion
Trieq. at o;;!o’o~r~t~S~il==l::J,~O::;kl~a~.’__     _
On …:28::::…:.:;No”‘ve=m::;:b,::er<-…;l9 43
Days awaiting trial (In arrest or confinement): ~7 _
let Ind.
TOI Commanding General, _~3::;6″‘t:.:h’-“‘I.::n:,f=an::.t:.:ry:..L…”‘Di=v1::;s:::i:.:o:.:n:._     _
__-,F..:o:,r.:,t..”s.,i::l::l,,-,..”Ok=1::a.:,.     ~3……D::e,::c:::ein:::b::::e::.r , 19..;4::,3,-__
Forwarded in compliance with paragraph 87c, M.C.M.
!o’or the COIlllll8IldiJ;lg-Ufficer:

C.V~
C. V. TUCKER,
Capt,     FA. (Adjutant)
Received,
Days awaiting the record (after date of trial): _

Acting by Commanding General under par. 91, M. C. M.:
Modification of sentence ordered _
Letter to Jlppointing authorHy _
Record filed without comment _
—-rf:’===r Division JA
(Examiner)
Record of trial, S.C.M.,–Cover’—-:t””i”‘”l”:”e””‘C”‘l;-e::r””k:—­
App.3
SPECIAL COURT-MARTI AI. CII ECK SHEET
Special court-martial check sheet
219

App.3
Yes No
Special court-martial order
e.v~
~. v. TUCKER Capt, FA Adjutant
RECORD OF TRIAL BY SPECIAL COURT-MARTIAL
OF
RE1JTLAND  John M.  36126705 Pvt Sv Btry. 359th FA Bn
(tnst ne.me)  (First name and middle initial)  (ASN)  (Grade)  (Orgnnizati~n)

CIIRONOLOGY
Date No. or dayft ExplflJ1atlon*
1.
Accused arrested .or coDf 21 Nov 1943

2.
Chartes fwd

To ReI> or Bn Hq 22 Nov 1943
Reed, ReI> or Bn Hq 22 Nov 1943
To TJA.. 24 Nov 1943 3
Read. TJA 24 Nov 1943 3 , Personnel of
3.
Date of trial 28 Nov 1943 7 court on CPX, Nov. 26, 2.7.

4.
Record fwd to ItA 30 NoT 1943 9     1943.

5.
Date of aotion 1 D&c 1943 10

6.
aecord fwd to SJA 1 Deo 1943 10

7• Totnl     10
•Exp1ain any delay over six days between arrest or confinement and date of trial) over three days between date of trial and aotion by ItA. Count number’ of dey. from arrest or confinement. In oOl’lputing number of days between two dates, disrsgard the first d.y and count the last day. Months 10111 ~ be assumed to consist of 30 days.
e,Y~
c. V. TUOKER Capt, FA Adjutant
App.3
I~QUARTERS 359~B FIELD ARTILLERY BATTALION
Fort Sill, Oklahoma
Speoial Court-Martial 1 December 1943
Orders No. 127
Before a special court-martial which convened …t Fcrt Sill. Oklahoma. pursuant to paragraph 32, Special Orders No. 277, this headquarters, “4 Ootober 1943, was arraigned and tried.

Private JOHN M. HENTLAND, 36126705, Service Battery. 359th Field Artillery Battalion.
CIli\RGE. Violation of the 93d Article of War.
Specification. In that private John M. Rentland. Service Battery, 359th Field Artillery Battalion, did. at Fort Sill, Oklahoma. on cr about November 20, 1943. feloniously take. steal· and oarry away about $13.00. lawful money of the United States. the property of Private Charles Bosant.
PLEAS
To the Speoification and the Charge.  Not Guilty
FINDINGS
Of the Specification and the Charge.  Guilty
SENTENCE

To be confined at hard labor at such p.lace as· the reviemllg authority may direot for six months and to forfeit thirty-three dollars per montb for a like period. (Gne previous conviction considered.)
The sentence 1I8.S adjudged on 28 November 1943.
The sentenoe i. approved and >411 be duly executed. The Post Stockade. Fort Sill, Oklahoma, is designated as the place of’ ccnf’in~ent.
Dr.ordsr of’ Colonel DONOVAN.
c. V. TUCKER. Capt, FA. Adjutant.
OFFICIAL. {!; U ~
C. V. TUCKER, Capt, FA, Adjutant
221

App.3
RECORD ~ TRIAL
by
SPECIAL COURT-MARTIAL
Private Johny. Rentland. 36126705. Servioe Battery, 359th FA Bn
Prooeedings in the trial of Private John M. Rentland. 35125705. Service Battery. 359th Field Artillery Battalion. by the special oourt-martia1 appointed by the order of whioh a oopy is appended. marked Proeeoution Exhibit 1.
Fort Sill. Oklahoma 28 November 1943
The oourt met pursuant to the order appointing it at 1940. all the
personnel of the court being present exoept as rol1ow8~
First Lieutenant Joseph V. Kingman, 0310513. 359th Field Artillery Battalion.
The accused and regularly appointed defense oounsel’ were presen.t.
The following members of the oourt were exoused and withdrew for the
reason stated opposite their names I

Captain Woodman A. Franks. 0369742. 359th Field Artillery Battalion (exoused upon challenge for cause);
Seoond Lieutenant Elwood C. YcAttee. 0501326. 359th Field Artillery Battalion (excused upon peremptory challenge);
There was no contest with respeot to the exousing of any of the
offioers named except as follows:

Captain Woodman A. Franks was challenged for cause by the defense
upon the, ground thllt he oould not impartially try the c…e having been
the accuser at a fonner trial against the acc.used and having pUblioly
stated that in his opinion the accused was not a substant·ial soldier.
Captain Franks admitted those facts but stated that he could·act
impartially in the instant case. Thsreupon. Captain Franks withdrew.
the court olosed and upon secret written ballot voted to sustain the
challenge’

The acoused having been given full opportunity to exercise his
rights as to challenge, the members cf the oourt and the personnsl of

the proseoution were sworn.
The acoused was then arraigned upon the Charge and Specification
appended’and marked Proseoution Exhibit 2.

The aocused then pleaded as follow”,
To the Speoification and the Charge, Not guilty.
Ths trial judge advocate made no opening statsment.
Private Charles Bozant. Servioe Battery. 359th Field Artillery Battalion. a witness for the prosecution was sworn and testU’ied in
8ubstanoe as follows:
DIRECT EXAMINATION
I am a private in the Servioe Battery. 359th Field Artillery Battalion. Fort Sill, Oklahoma. I know the accused who is in the military service of the United States and member of my battery. On November 19. 1943•. the accused and I were .O,ll guard duty together on the first relief.
22’2
App.3
When the seoond relief took over at 9,30 p.m •• the aooused and I went
to the post exohange for something to eat.. I had $15 in my billfold.
I spent about a dollar end a half at the post exohange and had $13 left
in three $1 bills and one $10 bill and some small ohange. I always
keep my bills in ,a wallet in my left hip pocket. The aooused tried to
borrow $5 from me, but I wouldn’t let him have it. We then went baok
to the guardhouse and went to sleep. The Corporal of the Guard woke
me about one o’olook in the morning. I found my/wallet missing. They
made a search. but the wallQt was not found. The aocused helped to
make the searoh and had an eleotrio lantern in his hand. On the
following morning the $10 bill and three ~l bills were found in the
e180\rio lantern that the accused oarried. The lantern was found under

tha.acQuaed’s bed.
CROSS EXAMINATION
Ther.e were about six la.nterns in the guardhouse, and when I reported my money missing, there were about 10 men present in the guardhouse.
QUllSTIONS BY THE COURT
When I woke up and could not find my billfold. I told the Sergeant
of t~e Guard at once. The money that was found in the eleotrio lantern

was of the same denominations and looked like my money since the Corner
of the ~bill was torn•
.,It””,t.·
Private Payson T. Wright. Service Battery. 359th Field Artillery
Battalion, a witness for the proseoution was sworn and testified in
su.bstanoe 8S follows:

DIRECT EXAMINATION
I am a private in the servioe Battery. 359th Field Artillery
Battalion. Fort Sill. Oklahoma. The acoused is also a member of that
battery. On. November 19. 1943. about 9,00 P.M •• Private Bozsnt showed

me $15 which he had in his billfold. I was in the guardhouse on the night of November 19th. and sometime during the early part of the morning I waS awakened by the accused who told me that someone had
taken Bozant·s money. The aocused, using an eleotrio lantern, joined
us in searching for the money. The next morning a $10 bill and three $1
bills were found in the bottom of an eleotric lantern in the guardhouse.

CROSS EXA~INATION
When Bozant reported that his money was missing. the Corporal
ot the Guard searched everyone. The money was Dot’ found and I went back
to sleep. Another search was made in the morning and everyone pulled off his shoes and stockings. After that the Officer of the Day searched the web belts. flashlights and lanterns. and finally fcund the money in
the electrio lantern.
First Lieutenant Do~ld S. Drexel. Headquarters Battery, 359th Field Artillery Bsttalion. a witness for the prosecution was sworn and testified in substanoe as follows,
DIRECT EXANINATION
I know the acoused who is in the military service of the United States. On November 19 and 20. 1943. I was Offioer of the Day. At about 6,00 A.M. on November 20 I reoeived a report thst Private Bazsnt had lost $13. I then called into the main room of the guardhouse all members of the
App.3
guard who “ere not then on po.t and had the Sergeant. of the Guard .earch them. I picked up a lantern under the aCOl.ed’. bed in the guardhou.e and looked in it. I took .off the bottom piece of the lantern and found a $10 bill and three $1 bills folded between the battery and the vall·of the l””tern.
The vitnes. then identified an electric lantern, a $10 bill and
three $1 bills. .hown to him b7 the proseOltion, a. being the lantern
and the bill. to which he ‘had just testified.

The prosecution offered in evidence the electric lantern and requeeted that it might be vithdr9.wn at the conclu.ion of the .trial. The lantern ….. received in. evidence and marked Prosecution E><hibit 3.
The pro.ecution then offered in evidence the $10 bill and the three $1 bill. and reque.ted that the7 mi~t be·withdrawn at the conclusion of the trial. The bill. wsre received in evidence and marklld Pro.ecution Exhibit 4.
The witne.s then continued hi. direct te.timon7:
I immediate17 took the accu.ed to rtJ7 officeo Before questioning· the
accu.ed I told him that an7thing he mil#1t eaT would be held again.t hill
and that he could remain silent if he chose to do .0. The aCOl.ed then
made a .tatement a. to taking the mone7. Staff Sergeant William E.
park•• who was pre••nt, took down the accu.ed’. statement in shorthand
and typed it up. The aCCl1.ed read over the typewritten .tatement and
then swore to it before Captain J. L. Cateb7, the battalion .U1D1DBr7
court-martial officer.

The witness th.n identifi.d a document, .hown to him b;r the
pro.ecuti·on, ae being the statement .igned and sworn to b7 the accneed.

The pro.eOltion offered the. document in evidence, 1’I>e defenee ob­
jected to the a4mission of the document on the ground that the confeeeion
vas not voluntar7. The objection liaS overruled, the dOCUlIl8nt Was reCeived
in evidence and marked Pro.ecution E><hibit 5.

The defense declined to cro.s-examine the wltnese.
The prosecution 1’8eted.
The defen.e .tated that it had no vitneeeee to call or evidence to
offer.

The accu.ed, after being ful17 advised of his ril#1ts b7 the court. ,.tated that he desired to remain eilent.
The defense rested.
The prosecution announced that it had no fUrther te.timon7 to offer.
The defense had no further testimon7 to 0 ffer.
Oral arguments “ere then made b7 couneel for the defen.e and counsel tor the pro.ecution,
Neither the pro.ecution nor the defense having a~thing further to ,offer, the court was closed, and upon .ecret written ballot, two-thirds of the member. preeent at the time the vote was taken concurring in each finding of guilt7, finds the 8CCl1sed:
App.3

ot the Specification and the Oharge: Guilty.
The court vas opened and the trial judge advocate. in the preeenceof the accu.ed and his counsel, read the attached evidence of one previous conviction, Prosecution Exhibit 6.
The trial judge advocate read the data as to age, pay and service as shown on the charge sheet, Prosecution Exhibit 2.
The accused stated that he had no objection to offer concsrning
the data a. to age, pay and service.

The court \lBS clo.ed and upon secret written ballot, two-thirds ot the members present at the time the vote was taken concurring, sentences the accused to be confined at hard labor at such place as ths reviewing BUthorit7 may direct tor six months and to forfeit thirty-three dollars per month for a like period.
The court was opened and the president announced the findings and.
l!Ientence.
The court then at 2115 on 28 November 1943, adjourned to meet at the call ot the President.
FLETOHER s. Sr-lI TH
Major, FA . President
IlAROLD O. OONNOR captain, FA Trial Judge Advocate
225

App.3

~\DQUARTERS 359,h FIELD ARTILLERY-BATTALION
Fort Sill, Oklahoma
1 December 1943
In the foregoing case of Private John J.I. Rentland, 36126705, Service Battery, 359th Field Artillery Battalion, the eentence is approved and will be duly executed. The Post Stockade, tort Sill, Oklahoma, ~. designated as the plac~ of confinement.
~~.­
RICHARD DONOVAN Colonel, FA Commanding
App.3
HEADQUARTERS 359TH FIELD ARTILLERY BATTAlION
Fort Sill, Oklahoma
Spacial Order. 4 Oot 1943
No. 277
EXT R ACT
32. A SCM is aptd to meet at Fort Sill, Ok1a, at 1930 on 6 Oct 1943, or a. soon thereafter as practicable, for the trial of slloh persons as may properly be brought bafore it.
DETAIL FOR THE COURT
MAJ FLETCHER S. SMITH, 0412868, 359th FA Bn C}J’T BRIA!1 \’I. JOHNSOII, 0384057, ~59th FA Bn CAPT WOODMAN A. FRANKS, 0369742, 359th FA Bn 1ST LT JOSEPH V. KINGIlAN, 0310513, 359th FA Bn 1.S~ LT OONALDH. RAYS, 0364363, 359th FA Bn. 20 LT EL\II:lOD C. MC ATm, 0501326, 359th FA Bn
CAPT HAROLD C. CONNER, 0350416, 359th FA Bn, Trial JA
CAPT JOSEPH DEERING JR, 0356203, 359th FA Bn, DefCoun.e1
All unarraigned csse. in the h/Lnds of the Trial JA of the SCM sptd by par 12, SO 214, this Hq, 2 August 1943, will be brought to trial before, the court hereby sptd. .

By order of Colonel DO110 VAN I
C. V. TUCXER Capt, FA Adjutant
OFFIC:u..L,
C. v. TUCKER
Capt, FA
AdjUtant

PROSECUTION EXH.IBIT 1
221
632260°–45—.-16
App,3
CHARCiE  SHEET
Fort Sill, Okla.  22 November  ,19.Q..
(PlaOl’)  (Date)
Name, etc., of accuaed bl1tlMA~nl.~,-hn.&….. ~§J?&1Q§.L?.!’lc~~e,  Service Bat tell.!. 3,,59~t~h===_

(GIve I:qt IU1mG, fint name. and nU~ inhial In that order followed by serial ftwnber, grade.. COCI:I~. regIment,
..FldLArtiller’y Battalion
arm or ~M;-bYother Dpp;;ri;~~;;i~u~;·-;;i-~~~···AIia;~~-;.-;te-::t;;f~;-I~~~’–············· ..-­
f·resent 50 00 None
~6 6/12 Pay, $ • per month. Allotments to dependents, $, permonth.
(Base pay p!uapay forleDgth of aervJce~ ..
Government rosurance deduction, $l…3.6 pe, month. Dataastoservice:Jlo…pllcr~,,—liI..dlli:.t.e…utDetroit, Mich.• 13 March 1943, for
(As to el1cll terminated enlistment, give Ineluding dates of service lUMi orgtlplut!on In which eeron.. at. teTmination. As to
the duration of the “Tar and six months.
eIlttenC enllBtme..De, give the inltJal du.te aIld the -t;~;;;r:-Gtve ~data 0.11 to aemu IUIt 1Ulder aD enli:stmeDU—,—­
Dataastowitnes”””,etc.:_~”instthe Accused:..
(GIVQ =ca, nd~. and note II for acaued. llit doeameatlu’7 evidenoe and DOte wbe:te eacb lte~ thereof
-lit§~Lieutenent Donald S. Drexel, HeadoUArters Battery, 359th Field Artillery
lZl:a,ybefOWld,)
Battalion, Fort Sill. Okla. p,.1>’at e Charles Bo.ant, Service Battery, 359th Field Artillery B”,ttclion, Fort Sill, Okla. Private Payson T. Wright….. Servi co Battery, 359th Fieltl Artillery Battalion, Fort Sill, Okla. For the Accused: None. _____.—!l9.l:..\!!!1!llW!.l”Y Evidence and Exhibits:
SYQion statement-of accused attac”,he””-,d’-!.he~r.!!e-“t,,,o.!.. _
eJectr1c bend lat.er…u…..a..L~. :Batt~n Headquarters. 359th Field
ArHlJery Battalion, Fort SilL-.Q~lat-­
.J….$l.<Lblll and 3..1L.bjJ.ls in sa~B”tt”l1on Headouarters, 359th Field
Artillery Battalion, Fort Sill. Okla.
Confined 21 November 1943, Post StOCkade, l’ort Sill.
Dataas to restraint of accused:
(Glvedatc. ~180e. o.nd lultlal datoof 8D7restralutotBCGWIed)
Okla.
‘W. Do. A. O. o. Porm No. IUS:
BJW1.1K3
(1)
PROSEX:UnON EXIlIBrr 2
App.3
CBABGE : Violation of the _-“’93″”dl..-Article of War.
Spec£jit(r.tiun: In that Pri’1o.te John M. Rentland. Service Batter~’, :l59-th Field Artillery Battalion, did.. at Fort Sill, Oklahoma, on or about l10vember 20, 1943, feloniously take, steal and carry away about $13,00, lawful money of the United States. the property of Private Charles Bozant.
(AtlditlOllA1l1beet8, If DeCellaary. for oharges and specilIcations will be attached hue. Ordfnary 8 by 1Zl!!.!nch paper will
be used for additional sheets>.
(2)
(WlUTE NOTHING BELOW TBIB LIN’&)
App.3
(WlUTB NOTHING ABOVEI THIS LINE)
(Slgnatureo(accUBer)”~L~=’-=::::=:::::::·’7’/::::::.,=::~:-,.=”””,-J”,,==:;.<uLo=:~-“_
DQlALD S. DREXEL,
1st Lt. 359th FA BIl.
(Grade, orpn.l.u.tlon, arm, or Mrrice)
AFFIDAVIT
Before me, the undersigned, authorized by law to administer oaths In cases of this character, per­
sonally appeared the above-named accuser this ~_day of November , 19Jil., and made oath that he is a person subject to military law and that he peJ:’!lonally’signed the foregoing charges and specifications, and further that he·l/¢tpl#>/W’NfP)</</fN~’PI;f1tttrI#¥l#,f#W#l#(!f#tpi;;
1/1///////////LLLLLLI~JL/LI~LlLL/IIIIIIII/III,~investigatedthematte
rss~
(Indlcate by specificatlop nDd charge Dumbua)
forth in specification’ and the charge , and that the same
. (IndIcate bJ’ sped8eatlou. cd ~Ke r1m:Dben)
are true in fact, to the best of his knowledge and belief.
(Signature) ~o~. / ~~ * ~,..i
YJ.* r::biTE~t10D)
Capt. 359th FA !In. SUIIIIl4%7 Court
(OlBclal daaraetv, u 8aDimar7 coUrt. DOtary publle, ~:-)—­
Non:s.-At (*) strike out words not applicable.
If the accuser has personal knowledge: of the facts stated in one or more speci6cat!ons or parts thereoft and hls lmowledge as to other specifications or parts thereof is derived from investigation of the feete, the form of the oath will be varied accordingly. In no case will he be permitted to state alternativeJ,y, 8S to any par­ticular charge or specification, that he either has personal lmowledge or has investigated.
If the oath is administered by a civil officer having a seal, hia official seal should be afflxed.
ftliND.
Headquarters 359th FA !In ….._,
,~rt Si~..I–ClIqa~~,19JU..
(Place)· (D_tel)
Referred for trial to~.!LlIY:~ Cmmor. 352t1LF.A.Jln….TrUl. Judge AdvocatlL_
(Grnde. Dame. IlJJdOrKllDlI.atlon ofa\UlUl:1.ll..t’ court, or trial juda’e advocate)
or the !P.!9.!.~__ court-martial appointed by paragraph –3.L.-, Special Orders
(SI1llUDll.l’Y) (Trial judp advocate of apeelal or li’.meral)
No. ..211_, Headquarters ~!LFJ…Jl!!.,—4 Octpber ,19Ju.. By ohler of__….Q.Qlonel DrnQVAlh
(CcnzuD&d or order) (Grado _nd D&I:I18 of comm&l:1d1q omcer)
Cu~
,Adiuta.nt.
—–~TUCKER
Capt, FA
(8)
App.3
I have served a eepy hereof on (</sI:’Nr/fJ the above-named accused, this_~2;.;5:..:t.;..:h daY of__.::N”‘o.:..ve”‘m::.b”‘e”‘r:…. • 19~
(Signature) ~.1″o~,’l’rialJ>udgeA&vocate. Capt, 359th FA En.
——–······CGrade BndoriPmlr.alJo~)-··——­
(SPACB FOR USE ‘WHERE TRIAL IS BY SUMMARY COUUT)
CASE No•………………

SPECIFlCATIONS AND CHARGES
PLEAS FINDINGS
SENTENCE on. ACQIDTTAL AND RE!lIARI\S
Place  • Dale  _______, 19__
______  Summary Court.
(Slgpature, gmde. 81ld oJ’SO,D.izaUoD)

Headquarters —-.—,pi,;;;;;.;;;;;;:.-.;; ——.19-­
———-·——;IA.u.;~~~i~authorit;)
(Signature. grade. and Or’8″BD.i:-“,,”‘-~””)—‘J’~.
Entered on service record in cases of conviction
(Inillalll o( penIQnn(‘1 adjutant)
(4)
‘(WRITE NOTHI-NG DELOW THIS LlNB)
App.3
One electric lantern introduced into evidence and withdrawn at the oonolusion of the trial.
PROSECUTION Er.EIBIr 3
App.3
Cne $10 bill and three $1 bills introduoed into evidenoe and withdrawn at the oonolusion of the trial.
PROSECUTION EXIIIBIT 4
App.3
Fort Sill, Oklahoma
Personally appeared before me, the under~igled authorlty for
administering oaths in cases of this character, Private John K
Rentland, 36126705, Service Battery, 359th Field Artillery Battal­
ion, F’ort 5111, 0klahoma, 1ibo, h”ving been warned of his rlll/lts
and having been duly sworn according to law, deposes and s~s II’
follows:

On or about 19 November 1943, I WIIS on guard at i’ort Sill, uklahon~. I was relieved from my duties as guard at 9:30 P.U. to resume again at 1:30 A.M., 20 Nove..ber. Private Charle/l Bozant, Senice Battery, 3~9th Field Artillery Battalion and myself’ went down to the PX to !:et a sandwich. We ate a ham and egg sandwich and drank a milkshake. We went back to the guardhouse and went to sleep. This was about 11,30 P.I!. I was sleeping and awakened by a noise. I went to Private Bozant’s bed. He was asleep. I took his billfold from his hip pocket, went outside, took t1-3 frolll the billfold. I threw the billfold into the bushes lind went back to the ~uardhouse. I went to sleep and was awakened at 1,30 A.M. to go on guard. Belore I went on guard I put the ~13 in my lan­tern where it was found by Lieutenant Drexel the next morning.
Further the deponent sayeth not.
~~~,~
pvt, Service Btry, 359th FA En
Sworn and subscribed to before me this 20th day of November 1943.
Q. .0.(: ~~JLu.
tf• L. CATES; —–(;7
J
Capt, 359th FA En Summary Court
PROSECUTION EJ(HIBIT 5
App.3
EXTRACT COpy OF SERVICE RECORD
OF .
Rentland John M. 3612670 (Last name) O”irst name and (ASN) middle initial)
Pvt (Grade), Sv Btry, 359th FA Bn (Organization)
RECORD OF TRIAL’S BY COURTS-llARTIAL
Summary, CM, 61st AW, 3 June 1943, AWOL fr 6/3/43 to 6/6/43
seiil;ence announced and adJUdged 9 June 19£ Sentence as approved —-forf. ~.=O=-;:,= -,;r;-=_ Approved –10 June 19…22..­
1 Certify the above ~s correct.
/s/ John L. !W’e.!J let .”L’i-tl…• ..;,F~A’-_~ Name, grade and organization Personnel Officer
_=…..,._3~5::.j9:.;:th~FWA~·”Bn;-.__–,..-_~:::.;;:.,,;:~~~=:…-_:::.2G.November1943
Designation of conmand -(Date)
1 certifY that 1 am the olficial custodian of the Service Record of the above named soldier and that the foregoing is a true cop,y of entry therein relating to previous convictions.
~cf·~·
(Signature
JOHN L. HYNES (Name typed)
1st Lt, 359th FA Bn (Grade and organization) Personnel Officer.
PROSECUTION EXInBlT 6
235

APPENDIX 4
REPORT OF TRIAL BY SUMMARY COURT-MARTIAL

.{WUI”Z NO’nIIN6 ABOVE THIS LJNij)
CHARGE SHEET
___F”o:…r”t_D_i:.:x::.,’-N”‘•.,-J_,,-­ -::l:.:l~O~c~t::.o:::.b::.er:-_~,  19~
(Plllee)  (Date)
Name, etc., of acetJB,ed ..,  Johnson.~Mertoli T. L .. ~q9-,?’§’;;J,.5.J.’D.Y!’.J&.. CompMv C. lll.bt__…. _ (GtV.1ut Dal2IIlI,,-6lllt. name, and mlddJr, iDnia] in tba.t order followed byeerlal “umber. grade. COI11IlllJiY. regiment.
Infantry  ._~  .  __.__  __  _

afm or eenriee. or b;y other OPPY’05rill.le deBaipUoIlo 0,”‘ aeelMed. AIioe name8, ctc!.• to follow 10 same IDIl.Dnar)
Present (Class UFn ) Age23 5h2 Pay, $ 50,00 permonth. A1lotmentstodependenta,$22 00 per month.
(Base pay p1Wi1Pa7 fo-r leqtb ofsenJee)
Government Il)lluranCB deduction, $ None per month.
Dataas to aervice: No prior service. Inducted at llalUlliore Md 18 July 1942, for

(Aeto eac:b tel’Ul.laated eDli!ItIQeDt. Ef,YO lII~””of .-rrioeaDli.~ 1110 wIlleb~l18’at.term1tiS&D. klto
:=eD~~~~~IV~:J~~:~~~u~~~v~~—:–.,-“‘-_-“”””—:-~-..”_.,–“.—–­
..-,..-M-:…….

Dataastowitnesses, etc. : Aga’ ns t .t.h£LAJ::.c:J..ed..L-..,..~-:_——–__
!GIve Dames, 1lddJ:’a.5ea, aDd note It lor aceuaet Lbt ~ftilIDIIolr aDd 110&0 wbcnI _dl Item thcn-ot’
Cao,-1dn Arthur M. Stern, CODlpIUlY C, 181st InflUltr,’, Fort Dix, 11. J.
E1Q’ be towul)
Corporal…z&:hary T. K~11Q~ompp’n)’ K, 181-ilt Infantrv; Fort Db:. N. J.
Priyr.. te rrhQrnas P GrAves, 26th Military Police Campen.. , Fort Dix, N IT.
For the ACCllsed:
___________.Doc’:’!”~E~ry Evi.~.~~e and .!x..!:~E.;.~.!.:.. ._ None
Data as to restraint of accused: Confined JJ Oct.ob.e.r. 1943, Post Gllardhouse Fort PiX, N,J;
(Give oate, place, nnd. iDltlaJ dateof any restraintofnoeused)
W.D…… O.O.FormNo.JJ.G
8!ul,.,lln3
(1)
App.4,
ClLWlE : Violation of the _–‘l.96c;to.<b’–Article of War.
~fiQU~l: In that Private Merton T. Johneon~ Comnany C. lSlet Infantry, was,
at Eort Dix, New Jersey, on or about October 10, 1943, drunk in camp.

Specification 2: In that Private Merton T. Johnson, Company C, lSlst.Infantry, having been restricted to the limits of Fort Dix, New Jerssy, did, at Fort Db, New Jersey, on or about October 10, 1943, break said restriction by going to New York City., New York.
(Additional sheets, If DeCessary. for dlarges and specifications will b. attached here. 0n1lDar7 81J1l2′!.l·lDch paper wm
be used for additional sheets) ~
(2)
(‘WJtJTE NOTHING lIELOW TmS ‘LINEl
237
APP’4

(WRITE NOTHING ABOn THIS LINE)
(Signature of accuser) ‘~:/;;.b~
ARTHUR M. STERN
Capt. IBlst Inf.
(Grade, organ!zat(OJ:1, ann. or service)
AFFIDAVIT
Before me, the undersigned, authorized by law to administer oaths in cases of this character, per­
sonally appeared the above-named accuser this ~day of …oc….tober , 19:-.lU., alid made oath that he is a person subject to military law,and that he personally, ~il’!’ed the foregoing charges and specifications, and further that he· j,jJ/rIJ:N,JiWr/rlvllMiilJAJ,MfJ.fW/#J/NvI:MiJ:Ir#”!.<#”*”
/ jiU1/I1/I1I/lUlLLlLiLJ.J.LLLLLllJiLllllllllIIlIlILiJj-/l.,Jrifhas investigated the matters set
(Indicate by Bpeeifieo.tion snd charge numbera)
forth in specifications J_’!!l.<L2 of t.h.e_char@ and the, c~~  , and that the same
(Indicate by speeifieation al1d ehya’e nWDlrera)
are true in fact, to the best of his knowledge and belief.
(Signature)  d:.’Q;;. 0 ~~’j.L E. M. ROWLEY:=:r:;a~~n)  ——–­
~~Blst  Inf. Adjutant  ‘ __.  _

(OfBeio.l character, aasa=a.ryeourt. bota:r’ypublle. etc.)
NOTES.-At (.) strike out words not applicable.
If the accuser has personallmowledge of the facts’stated in one or more specifications or pa:ts thereof, and his knowledge as to other specifications or parts thereof is derived from investigation of the facts, the form of the oath will be varied accordingly. In no case will he be permitted to state alternatively, as to any par­ticular charge or specification, that he either has personallmowledge or has mvestigated.
If the oath is administered by a civil officer having a seal. his official seal should be affixed.
‘s1 IND.
Headquarters 1Jl)..!!.!<.~l!1:!!nJLr.L , __–.B>Rt~–lW.o.-,..l~~,19-43.
(Pl.aee) (Date)
Referred for trial to Major Ch~~fu…!’:Q!!~~.r
…..;r,.lll!!!<_I,p.fan..i~
(Grade, DDlIIC. and orgnni:.ntioD otsummary court, or tl’tal juiise nd’lOC&te)
(S~~~. od~u” of “~I-;-01-.’-.~-.”,,-;-):–court-martial appointed by paragraph ..1L-, Special Orders ‘No.~, Headquarters _lBlet. Inf~~ ___”,l-,s””ept’ember ,1911.L By _2J:!!ll.L–of ColJ!!1..!.~!l:tQ~ _
(Command or order) (Grade aDd name ot”COlllIDD.ndlnlr oJ!lcor)
_£ m_:..-£R~~~—-“,-__,Adjutant.
E.M:R~.~~~
Capt. ISlet Inf.
(8)
App.4­
I have served a copyhereof on (each of) the above-named accused,’this _ day of .
.,19_ (Signature) “__ , Trial Judge Advocate.
IGrlltlc lind orSDniwtlon) (SPACE FOR USE WRERE TRIAL IS BY SUMMAny COURT)
CASE No.12!l.
————_.
SPECIFlCATIONS AND CHARGES
Sp. 1. ChI Sp•• 2: ChI ,ChI
.

PLEAS  F1NDINGS  SENTENCE OR ACQUITTAL AND REMARKS
G NG G  – G G G  To perform hard labor for fifteen days and to forfeit eighteen dollars of his pay (one previous conviction considered). Accused received an ~xplanation of the meaning and effect of his plea of guilty to Sp. 1 and to the Ch•
CHARIJ!’S B. FOSTER (Sllpatun’. nade. Bnd orglUll:u.tlon)

Plac~ _~Lt_!;l1&.1l.d!.__•Date _14 Octob~_, 19J!.?_· (6′.a~ ~_.~Jg.!L~~.!!!.Inf~~~_. Summary Court.
Readqumers -W!!_~~d:~~.~.LM
.•l!’.!.J._!~.Q!:~’?~~.19li,L
(Place U1d date)
_______…!EE…~!!L~~~!’!l.c!.~~~E~~~!…. _
(AGUan of1’8VlowJlIs authority)
.~::!:::’.._&!”__~.:w.1Ulin(J.
nLLiMrH~ BnJilOCHARDSON, . Col. 16let Inf•.
Entered on service record In cases of conviction __”._c..~ _
A ~~:(iJ–. ~IJ~–,.A UnJU,,”OfpI1″IIOI:n1eladJutaJlU
E. J(. iOOEr~ ? (4)
Capt. 16Ist Inf.

(“IVIUft )tM’Hl!lQ ZlmLOW ‘rBI’ lJlIll)
Adjutant
APPENDIX 5
IMPOSITION OF PUNISHMENT UNDER AW 104
UPON OFFICER

HEADQUARTERS l09TH INFANTRY ~/jJ Ofnoe of the Regimental Commander
Fort Wileon. Ohio L Feb. 1944
201 -Boyd, Jonathan (Off.).
SubJed: Disciplinary Action.
To: 2nd Lt Jonathan Boyd, 109th Inf. Fort Wilson. Ohio••
1.
Investigation has indicated that on or about 27 January 1944, you were disorderly in the Officere’ Club. Fort Wilson. Ohio.

2.
It is my intention to impose punishment for’Slich offense un­der All’ 104 unless trial by court-martial is demanded. In accordance with MCI·I. par. 107, you are notified of this intended action. You will acknowledge receipt of this communication by indorsement which will include a statemont whether you demand trial in lieu of action under All’ 104.

~(J~
AUGUSTINE P. BILLESBY.
Col,. Inf.
Commanding.

‘Under the provisions of MeM. par. 107. the letter notifying the acoused of the intention to impose punishment will be “through proper ohannels”. as will all subsequent indorsements on the oommunication. Indoreements by intermediate commanders through whom the communication may pass are not shown on this form. Aocordingly. none of the indorsements have been numbered.
201 -Boyd. Jonathan (Off.) Ind. Fort ‘·I!lson. Ohio. 3 Feb. 1944.
To: CO. 109th Inf, Fort Wilson. Ohio.
aeceipt acknowledged. Trial by oourt-martial i e not demanded,
~~.
JONATHAN BOYD. 2d Lt. l09th Inf.
App.5
2:>1 -lloyd. Jonathan (ott.) Ind.
Rq. l09th Int. Fort Wilson. 0h10. 3 Feb. 1944.

To: 2d Lt Jonathan :9oyd. l09th Int. Fort W11son. 0h10.
1.
You are hereby reprimanded tor conduct to the prejudice ot /!Ood order and military discipline. Your actions indicate an instability ot character and disregard ot the responsibilities ot an otficer. En17 ofn csr is requirsd so to condnct hilUelt as to be an -eDIIple ot decorall to be followed by his associatss in the service. In th1s duty yeu hays failed. Since this is your first otfense coming to JJIY notice. and 81noe your military record hsretofore has bsen /!Ood, chargea ware not preterre4 in order that you might have the opportunity ot redeeming yeurselt and proving you are worthy of holding a colllllllasion.

2.
TlrlB reprime.nd will become part ot your penonal record.

3.
You are advi Bed ot yeur right to appeal in accordance with KCM, par. 108.

4.
Reply’ by indorsemsnt hereon, including the date of your receipt ot th1s indorsement and any appeal you mq desire to make.

all -llo1d. Jonathan (Off.) __In4. Fort WUson. Oh1o, 4 Feb. 1944″
To: CO, l09th Int. Fort 1I11aon. Oh1o
1.
Reoeiysd 4 Feb 1944. and oontents noted.

2.
lIo aPPeal.

~~.
JOHlmAll’ llOlD. 2d Lt, l09th Int.
APPENDIX 6
RECORD OF PUNISHMENT UNDERAW 104

COMPANY PUNISIIMEN’T BOOK
Glassborn Peter E. Pvt. -Co. A 109th Infantr'”
IName, Laet name first) (llank) (OrganimUon)
>
Ol!’l!lllSE
DATE AIID
PUNISl>
:BY lIllOM
DATE or
DECISION
MITIGATION
llEMARIrS INITIALS
PLACE OJ!’
MENT
IMPOSED
ON
OF
NOTICE
OR
COMMISSION
IMMEDIATE
APPEAL,
REMISSION
TO
ACCUSE!
IF ANY
C.O.
Failure
4 JU1,.
6 da,.s
No app.
None
CO Co.
1I0ne
5 JUl,.
to
1944, Ft.
restr.
1944
A
g. ‘tJ.4
repair
Wilson,
for KP
Ohio.
Diso….
7 da,-s
17 Nov.
None
18 Nov.
NO app.
None
CO Co.
der1,.
1944, Ft.
HI.
1944
A
in bill’­Wilson,
C).Y31
ra.cks.
Ohio.
NOTE: One page is given to each person lIDd an alphabetical index will be found of assistance in consulting the record.
APPENDIX 7
SPECIFICATIONS FOR WRONGFUL TAKING AND
CONVERSION UNDER AW 96

Fer use of property, not owned by the government, Without consent of the.owner:
In that did, at , on
or about .———,19 , Vdthout the consent of the owner, wrongfully take and carry a1l8y _ value about , the property of _
For the use of property, without authority, owned by the United States:
In that did, at , on or abou~ , 19_, Without authority, wrongfully take and carry away , value about , property of the United States.
Wrongful use of pr~erty entrusted to accused:
In that did, at , on or about , 19 ,wrongfully convert to his own use vaIiiedat,the property of , entrusted to him (by) .(for by –­——-) by virtue of his (detaH) or lassignm’:’en’:’t”‘)”–­
as _
In that did, at , on or about , 19 , wrongfUlly take and U8e ~1thout consent of the owner, a certain-automobile, to Wit, a (here give a brief description of the automobile, as: Buick Sedan) property of , of a value of more than $$0.00.
632260°–45—-17
APPENDIX 8
LESSER INCLUDED OFFENSES
This table lists certain major offenses, some lesser offenses which are included within those major. offenses, and some offenses which have been held not t’o be included offenses. It is not an all inclusive list, nor can it be applied mechanically in every case. There is often a justifiable divergence of opinion, depending on the form of the specification and the facts in the case, as to whether a particular offense is included within the principal offense charged. This table, therefore, is intended as a general guide and must be used in all cases with caution.
Principal offense  Lesser inciudeJi  Reference  Not included  Reference
Absence without leave (AW 61).  –… —-­-­—_ … -_ ……… – , ___ M __________________  Failure to repair to properly appoint· ed place of duty (AW61).  Dig. Op. JAG, 1912­40, Sec. 419 (3).
Assault with intent . to commit murder or manslaughter (AW93).  Assault with intent to do bodily harm (AW93). Lesser degrees of as· sault (AW 96).  1921 MOM, par. 377. ———­–­–­–­–­ –­–­–­——­-­-­-­–­——-…….—–_ … ­
Assault with intent to eommit rape  Assault (AW 96). ___  Dig. Op. JAG, 1912­40, see. 451 (4).  Assault and battery (AW 96).  Dig. Op. JAG, 1912­40, sec. 451 (4).
(AW93).  Attempt to commit  ———————­ ———————­ But see See. 451 (59).
rape (AW 96).
Assault with intent tarob (AW93).  ——-­——-­–­–­ ———————­ Assault with intent to do bodily harm (AW 93).  Dig. Op. JAG, 1912­40, Sec. 451 (59);
——­Assault with intent to do bodily harm with a dangerous weapon (AW 93).  Assault with a dan· gerous weapon (AW96). Assault (AW 96) ….  Dig. Op. JAG, 1912­40, sec. 451 (8). Dig. Op. JAG,1912­40, see. 451 (9) and (13).  Attempting to strike officer or noncom.. missioned officer (AW 64, 65). —-­.. _–_..~-._ ……….- Dig. Op. JAG, 1912­40, Sup. I, sec. 451 (lla).
Assault with intent to do bodily harm (AW93).  Assault (AW 96).__ .  .. ——–..–…….._….–..  —­.. –_.-…..–……..-­

A.pp.8
Lesser included Principal offense
Reference
Not included Reference
Assaulting commis· Assault upon officer
Dig. Op. JAG, 1912­
—–.——.——–­
sioned officer (AW
or noncom, not in
40, sec. 423 (2);
64) or noncommis·

execution of his
1 Bull. JAG, 18.
sionen officer (AW

office (AW 96).
65) in execution of
office.

..
Battery (AW 96) ….. Assault (AW 96) ___ .
1921 MOM, par. 377
Burglary (AW 93).. __ Housebreaking (AW
Dig. Op. JAG, 1912­
—–.—————­
93).
40, sec. 451 (14). Breaking and enter-
Dig. Op. JAG, Wl2­
-.——————_.
ing (AW 96).
40, sec. 451 (14). Tresspass (AW 96)..
Dig. Op. JAG,1912­40, sec. 451′(15). , Attempt (AW 96) ___
——————-.—————-.——-
Oonduct unbecoming Same act under AW
1921 MOM, par. 377;
—————.:…_—­
an officer and a 96.
but see 1 Bull.
gentleman (AW 95).

JAG, 215.
—________________ -M_
1 Bun. JAG, 103___
Dese’rtion (AW 58)_._
Absence without
leave (AW 61).
Quitting post with

Dig. Op. JAG, 1912­
-_…. —————–­intent to report
40, sec. 416 (12). elsewhere (AW 96).
/
Attempt to desert
——.——–.—–­
(AW 58).
Desertion (AW 28)
Absence without
Desertion (AW 58)
1 BUll, JAG, 322. absence without
wih intent to re-
leave with intent

leave.
main away per-
to shirk important

manently.
service or to avoid
hazardous duty.
1 Bull. JAG, 159____
Disobeying order of Failure to ohey (AW Disobedience of gen-
Dig. Op. JAG, 1912-­superi~r officer
96).
eral or standing
40, sec. 422 (7). (AW 64) or Don-
order (AW 96).
commissioned offi­
cer (AW 65).
Drunkenness (AW
Drunk on duty (AW
Dig. Op.JAG, 1912———————-­85).

40, sec. 443 (1).
96).
Drunkon post (AW
Drunkenness (AW ————————————.——­86).

96). ..
.
Larceny (AW 93,
Dig. Op. JAG, 1912­93,94).
Embezzlement (AW
Misappropriation ———————­
(AW 96).
94).
40, sec. 451 (43). Fraudulent conver-
Dig. Op. JAG, 1912­sion (AW 96).
Dig. Op. JAG, 1912­
Losing government
property (AW 83,
40, sec. 452 (4). 84). ‘–. -. -.­Escape from confine-~~
40, sec. 451 (21).
Breach of arrest Dig. Op. JAG, 1912­ment (AW 69).
Attempt to escape Dig. Op. JAG, 1912­
(AW69).
40, Srip. I, sec. 427(AW 96).
40, sec. 427 (4).
(6a).
Breach of restraint Dig. Op. JAG, 1912­or parole (AW 96).
4(), sec. 427 (6); 1 Bull. JAG, 214.
.245

App.8
Principal offense Lesser included
Reference
Not included Reference
Larceny (AW 93) Wrongful taking
Dig. Op.JAG, 1912­Embezzlement (AVI without consent
93).
-ofowner (AW96).
40. sec. 451 (40);
1 Bull. JAG, 21.
Wrongfu] possession (AW 96). Receiving stolen goods (AW 96).
Wrongfully dispos­Dig. Op. JAG, lill2­ing of property by 40, sec. 451 (16). sale (AW 83, 84).
Willfully or negli­gently losing prop­erty (AW 84).
Attempt (AW96)
MOM, par. 149a,
93).

Manslaughter (AW p.167.
Various     forms of
assault (AW 93,
96).

Mayhem (AW 93) Attempt (AW 96)_._
MOM, par. 149b,
p.167.
Various     forms of
assault (AW 93,
96).

Misappropriation
Larceny (AW 94)_._ Dig. Op. JAG,1912­(AW93).
40, sec. 452 (18).
Murder (AW 92). .
Manslaughter (AW
MOM, par. 148a, p. 93).
162; Dig. Op. JAG 1912-40, sec. 450
(2).
Various forms of as­.
._.__• _
sault (AW 93, 96).
Attempt (AW 96)

. ._•..
_
Dig. Op. JAG, 1912­
._. ._.. _ 96).
False swearing (AW Perjury (AW 93)_—­
40, sec. 451 (52).
Giving false testi­
mony (AW 96).

Rape (AW 92) Attempt (AW 96)
MOM, par. 148b, p.
.._
165.
Various     degrees of
assault (AW 96).

Robbery (AW 93) Attempt (AW 96)___
MOM, par. 149[, p.
Dig. Op. JAG,1912­Assault with intent
40, sec. 451 (59); (AW93).
171.
to do bodily harm 1 Bull. JAG, 20.
Assault with intent
to roh (AW 93).
Assault and battery

Dig. Op. JAG, 1912­(AW96).
40, sec. 451 (59).
Larceny (AW 93) _

Dig. Op. JAG, 1912­
40, sec. 451 (59).
Wrongful taking of

Dig. Op. JAG, 1912­property (AW 96)
40, Sup. I, sec. 451
(50).
App.8
Principal offense  Lesser included  Reference  Not included  Reference
Sentinel sleeping on post (AW 86).  Watchman sleeping on post (AW 96).  Dig. Op. JAG, 1912­30, Sup. VII, sec. 1548.  Leaving post before being relieved (AW86). Loitering on post (AW 96) or im­properly perform­ing duties as sen­tinel (AW 96).  Dig. Op. JAG, 1912­40, sec. 444 (2). Dig. Op. JAG, 1912­40, sec. 444 (2).
Sentinel leaving post  ———————­ —————–._–.  Improperly perform- Dig. Op. JAG, 1912­
before being re­ ing duties as sen­ 40, sec. 444 (3).
lieved (AW 86).  tinel (AW 96).
Wrongful disposition  ——-­_. ­-­—­-~ . -­ —–.——-.—.—.  Negligent loss (AW  Dig. Op. JAG, 1912­
of military property  84).  40, sec. 442 (3).
(AW 84, 94).  Wrongful abandon­ 1 Bull. JAG, 275.
ment of property
(AW84). Wrongful disposition  Dig. Op. JAG, 1912­
Wrongful sale of mili­ ———-­—.–..  -._–.——-.—.—.
tary property (AW  (AW 84, 94).  40, sec. 442 (3).
84,94).  Wrongful pledging  Dig. Op. JAG, 1912­
or pawning (AW  40, sec. 452 (21).
94).  1 Bull. JAG, 20.

247

APPENDIX 9
SPECIAL ORDER APPOINTING SUMMARY COURT-MARTIAL

~UARTERS
l28TH INFANTRY C8ap Pollc. Louisiana
1 May 1943.
SPECrALORDERs)
NO. 118)
EXTRACT
***********************.******
3. Effective this date Major John P. Staffor<i. Jr••
020$2137. Inf, is detailed Summary Court-Martial.
**-**************************
Sf Order of Colonel Graves.
R. L. LOWE.
Capt.,     l28th Int. Adjutant
OFFICIAL.
G?o(,/~.
R. L. LOYlE,
Capt.,     l28th Inf,
Adjutant.

APPENDIX 10
NOTICE TO MEMBERS OF MEETING OF COURTS-MARTIAL

HEAD~ABTERS 29TH INFANTRY DIVISION
Office of the Trial JUdge Advocate
Fort Jackson, south carolina.

5 December 1943
SUBJECT: Convening of General court-~~rtial.
TO: Second Lieutenant George S. Troutline, Headquarters Cocpany,

29th Infantry Division.
1.
By direction of the President thereof, ~the Gsneral Court-Martial appointed by paragraph 1, Special Ordere No. 261, Headquarters 29th Infantry Divisio!l, dated 18 September 1943, as amended by paragraph 11, Special Orders No. 273, Headquartere 29th Infantry Division, dated 30 September 1943, will meet in Room~4, Division Headquarters Building (T-316), Fort Jackson, South CarOlina, at 1930 on Tuesday, 7 December 1943, for the trial of such cases as nay be properly brought before the court.

2.
Service uniform with coat, service, and trousere, olive drab, without side arms will be worn.

3.
Request reply by indorsement.

~j.7~·
HOWAIUl J. HITCmNGS,
MEljor, Ilif., .
Trial Judge Advocate.

1st Ind. Second Lieutenant George. S. Troutline, Headquarters Company, 29th Infantry Division. 6 December 1~43.
To:     Major Howard J. Hitchings, Trial Judge Advocate, Headquartere 29th Infantry Division, FOrt Jackson, South Carolina.
1.
I will (not) be present.

2.
Reason: Excused by VOCG.

Signature of George Troutline
George S. Troutline
(Name)

(Barik) (Arm or Servics)
APPENDIX 11
STIPULATION AS TO FACTS

Fort Jackson, S. C. 5 Janua1’7 1944
STIPULATION
It is hereby stipulated and agresd by and between the
prosecution, the defense and the accused as follo”sl
1. That the value of the gold wrist watch referred to in the
Specification of Charge I of this case, at the time alleged therein,

“as thirty-five dollars ($35.00).
2. That said wrist watch, at the time alleged, was owned by Sgt Joseph A. Turner, Co C, lllth Infantry, Fort Jackson, S. C.
~’&.lJl~~.
Thomas D. Macfadden Capt.,13Oth In4. trial, J.udgaAd1z’.ocata
C9i~Pf:°~
Capt, 130th Inr, Defense Counsel
Signature of Mat Camicia
llat Camicia Pvt. Co C, 130th Inf, Accused
APPENDIX 12
.

STIPULATION AS TO EXPECTED TESTIMONY
:Port Jackson, S. O. ,5 J8Jll1a17′ 1944
STIPULATION
It is hereb)’ stipulated and agrelid b7 and between the proeecution, the defenee and the aeroled that if’ Michael I. O’Reill)’, 4237 2d Ave, !lev Yorle Cit)’. B. Y., vere present, he would testif)’ as follows:
I ~s a member of ‘the !lew York Cit)’ police, Department on dut)’ 24 December 1944. when Pvt J~ee R. Scott came to me at the 42d Street ‘police Station and said that he was absent from his out­fit. had no mone)’ and wanted to go back. Be was dressed in mllit&1’7 uniform when he came to the police Itation.
Signature of Thomas MacFadden
c~.:/.(jJ~
Oecil T. People , capt, 130th Inf. Defenee Counsel
7&d:~
Mat osaicia
Pvt, 00 0, 130th In1′, Aerollid

APPEND1X 13
DEPOSITION OF CIVILIAN WITNESS
I This ton:i:l to be wed wbero deposlUoD. Is caten on ‘l’l’rltteD. /.oter_
‘rogBtorles. ltsbould be modl8od.I.a casoJt is to
~~(~~~~~= ~~~fro~ollb~~~
Martral.l928 Cpar.II8,CorPlebcases. J Strlte out words Dot
“””.
• GeIl~ral(Of’llpcclalor
~)oourt-mBr·
UaI. or mJlltary com­mJsdOD. OJ’ court of In­qalry,orm.llJ.tarJboard.
• laMrt name or title of ptIl30II wbo Is f&o qllOllted toetlusatbodo­positlOtlW be taken.
To be subscribe by the trial judge advocate or other proper person with his name, grade, organization and official title, as “judge advocate,” “summary court,” “recorder,” etc.
If it is desired to give special instructions, there should be added “special instructions attached.”
ru tho fPllOOS for
11I1!WBl’Baro not su.Q1­
clent, e:rtmshoota DJ8ybelnsertedb1tboomClJf.
taldeg tbe dOp06IUou.
In 8ucb ClLSO, be wUI ….,…,r1to tho 1I:IterTOlPl­
~?~ol;:~~~tS:
roptorlos.
United States vs pvt John T. Derrick, 35406324, Company A, 113th Infantry
Deposition of Lucy__.rol1l!B._D~n:l..~  .  .  .__ •. _.•.._._…•
stationed or residing aL_a6Q_..J.M~_.~;J;’!L$_~.._H-‘!~!~._J~.__ !,.  .  ._  _  __.
to be read in evidence b.for. a 3  .gQ~~:r!!)._ ..~\!._~~’!!”-;J;’~_!~J, __ .  .  .  .__ .  .._._._  .

INTERROGATORIES
AND
DEPOSITION’

United States Army. appoint.d to m••t at__ !’9.:r_~ __..,.U~_<?!h._.O~~.tI!’)~~ ….Q!’!_o_ .. . ._ …•.• by paragraph _ll • Sp.cial Orders, No. __?_e.~ ..• H.adquarters__ ~_~!! __t~f~n.~_I7. _._ _ .._m..’!”_t~!_9_~ … ..!LQ~.~~_1:l_e,, . .__.._. …. .._. …_….:_. 19__43._
Fort lfi1son.._Oh1.o . ._. 1O._»!l~_, 19._~ To .—~~~!\<!,-§~-~&:–~9PT’_~},.—.–­I request you cause to be taken on the following inte~~~U~e; the ~eposition· of the above-nam.d witness. . o<:f)~ {i”. {]J/ ~
·–jjiliiiiir·C~–OT:Brren·-·——–·-·—-·-·—-·——­
Capt. 103d FA Bn. Trial JA HEADQUARTERs,Se.ClIu4-__sern_cJ!_.QQ~\\._~g __~_’1!1 19_~:l..
To__ .MI1-Jo.r__htJ!J:__”‘L_.Kl.;l,’«Q~\\._.Rq’1 ..~~_g~.!’,<!-__$_~!!:t~~ __~~~ .. _
who will take or cause to be taken the deposition above .requested.1I
By •.Cll_”‘-.__ _ of •__I,l!!..1<?_:r_.~_~J!~._(l.~_~ ._

··········~~–~~–‘1/i;l~~l
First inlerrogalory: Are you in the military s.rvic. of t.he Unit.d States? If so, what is your full name, grade, organization, and station? If not, what is your lull name OCCUpD.­~n,~~idence? ‘
Amwer: ‘My name is Lucy Jones. I live at 280 East Third st., Newark,
N.     J. I work as a waitreesat the Bluebird Restaurant on 01endenn~ Ave. Second interrogatory: Do you know the accused? If so, how loug have you known him?
Amwer: I have known the accused for three ~ears.
Third interrogatory: What is ~our, relationsh1p to the accused?

Answer: I am his wife•
Fourth interrogato17f When were )’Ou married?
Answer: About a ~eer ago.

!’lfth interrogstor~: Does)’Our husband support ~ou?
Answer: He frequentl~ sends me mone~ or brings me mone~.
Sixth interrogsto17: Daring the period between September 1. 1943. and November 15. 1943, did ~ou see the accused? If eo. when?
Answer: Yes. from the middle of September to the end of November.
w. D., .4. O. o. lrnf,n Nu.lUI MQr. HI. i:’~ J-aJog
App.13
~Iln elL99 1:10 c:rosa­
,ll:Iterrogotol1esareprD­
f:~~~Jb8~J~~tl~~
tlcated by tbe algnature ofdereDS6counsaJwb8D tbe deposition b takm by tbe prosecutlOD, andbytbQ[rlBIJudgeadvo­cat8 wbeo tbe depo.s(·
:~’:e~ f:k::.:l~~
c:aa8ll. ­
seventh interrogat017′: Did you wr1 te to the accused asking him to
Come to you because you were sick at that time?

Answer: I wrote to my husband at Fort Wilson and told him I was sick in bed so that a neighbor had to co~e in aud take care of me. I have no relatives nor could I el!lploy a nurse, so I Bsked my husband to come to me.
Eighth interro~tory: Did the accused come after you wrote to him?
Answer: Yes, he CDJDe about the midale of September and told me that he was jUst taking a few daD’S off and would have togo back soon, but since I did not get any better he stayed down to take care of me.
Ninth interrogatory: How long did he remain with yOU?
Answer: Until I got well about the middle of November and was able to go back to work.
Tenth interrogato17′: Did your husband during that time make a state­ment to you about returning to Fort Wileon?
Answer: ·Yes, every couple of days he told me it was about time he got back. About November 24 or 25 he told me one evening that he would have to go back to c&I!lp .the next day, and he ~ade arrangaments that same night to go back.
Eleventh interro~tory: Did your husband leave you to return to Fort Wileon?
Answer: Yes, ·the next morning he left to catch the train to Ohio, but I did not hear anything from him until he wrote to me from the. guardhouse at Fort Wilson.
First cross-interrogatory’: .Did you have a doctor examine you when you
were ill?

Answer: No, my neighbor and my husband were able to take care of me
and I thought it was a silly expense to have the doctor come in.

Second cross-interrogatory: When were you able to work after your
.illness?

Answer: I _s cOl!lpletely well about· the middle of November and in­tended to start work about that time but felt that I should have a little . rest ··aftermy illness· to recuperate, so nq husband stayed on.
Third cross-iuterro~tory: Did you or your husband have any money
dUr1!18 this period?

Answer: Yes, my husband had quite a bit of money when he came down
to help but used it all up while I was sick.

FOurth cross-interro~tory: Did your husband remain in uni form during t”his period?
Answer.: Yes, he had no other clothes.
253

App.13
rrneert “~ourt.” “commJs8Ion,” or “-~a.rd”. as tho 0050
ma,be.,
(i..Mve spaoe”for bl11d1ng)
Fir8t interrogatory by the ••••:._•••••._._••••…••_•••••••••_.
(witne88BignhBre) ..•.:.d?-~~~.~
_ Luc~..J.o.1l§J1..D.errl.ck…••…•.•.••.•..•…….• I omtl1’It1′ that the above deposition was duly taken by me, and· that :the above·named witnees, having been first duly swom by me, gave the foregoing answers to the several inter­
rogatories, and that he prescribed the foregoing deposition in my presence at .Nlll«U’k•..•._ •
…_.ll~.J. ………… .•• ., this •__..l.3.th…_. day of •……ne.ClWIb.l!l:•••••••••_•••••, 19_~~

(Name) …G?.~_m..:”EJ…~
Peter M. Milweed .~J….B.q.e_..s.e_c_Q_u..Q….S_(l_m.g.(l••.C.QJll.’!l~\l, •••••••••_.
(Orado and organUstloD.)
•••_•……………~rz ..aOMr.t _

(OfllcisJ cbaraoter, as SWIlI:l:W’Y court, llotBl7 public, o~J
App.13
DJ8~BUCTION8
1.
~PBr&tlOD of interrogatories and taking of depoaitiona.-Bee paragraph 08, Manual for Court&­uuutio.l, 1928.

2.
Suggestions for person taking deposltion.-BeCore a witneBS gives his answers to tbo interroga.­tories they should be read and, _if neoessary. explo.ined to him, or he should be permitted to read them over in order that his answers may be olear, full. 8nd to the ,point. The person taking the deposition should DOt advise the witness how be should answer, but be should endeavor to see that the witness understands the questions and what is de~lred to be brought out by them, Bod that his answers are clear. full, and to the point.

If a military officer takes 8 deposition, he will ordinarily complete and certify the: voucher. WheD a deposition is taken by 8 civil officer, he should, if so requested, obtain and Curnish with return of the depoai. tiOD the data necessary {or the completion of tbe witness voucher. (Par. 98e, M. C. M., 1928.)

3.
Fees and allowances for witIleases.-Witnesses, other than persons Buhject to military Jaw, who are required to appear beforo a court-martial, court of inquiry, military commission, or retiring board, or before an officer (cIvil or military) empowered to take depo~ition8, a.nd there to give testimony under oa.th to be used before a court, are entitled to receive fees and alJowa.nces as fixed by Jaw. (See AR 35-4120.)

4.
Tender of fees•…:.When ordered by proper authority, tbe fees of the witness and b.I8 mileage at the rates allowed, including fees for one day’s actual attendance and J;D.i1enge (or the journey to and (rom the place where the v.;tness is to appear under the subpcena, will be tendered or paid in advance by the proper finance officer. In Order to maintain 0. prosecution under the 23d Article of War for neglect or refusal to appear, a person must not only be duly Bubpceno.ed but ho must be paid or tendered (ees as inmen.ted. (See par. 97, M. C. M., 1928.)

5.
Depos·itions-Before whom takon.-Depositions to be read in evidence belore military courte, commissions, courts of Inquiry, or military boards, or for other use in m.Hitary administration, xnay be taken before and authenticated by any officer, military or civil, authotized by the laws of the United States or by the laws of the place where the deposition is taken to administer oaths. (A. W. 26.) ,

6.
Authority to adminJ.ster Qaths.-Any judge advocate or acting judge advocate, the prealdent of a general or special court-martial, any summary court-~ai-tial. the trial judge advocate or any assistant trial judge advocate of a general-or special court–martial, the president or the recorder of a “Conrt of inquiry or.of a military board, any officer derognated to take a deposition, nny officer detailed to conduct an investigation, and the adjutant of any comniand shall have power to administer oaths for tbe purposes of the administr&­tion of military justice and (or other purposes of military administration; and in foreign pIsces where the Army may be serving shall have the general powers of a notary public Or of a consul o( the United States in the administration of oaths, the execution and acknowledgment of legallnetruments, the attestation of docu· monts. and all other forms of notarial acts to be executed by persons subject to military Jaw. (A. W. 114.)

7.
AdmiDistration of oaths.-In all cases in which, under the Jaws of the United Stf\tes. oaths are authorized or required to be administered, they may be administered by notaries publio duly appointed in any State, District, or Territory of the ‘United St,ares, by clerks and prothonotaries of courts of record of any such State, District, or Territory, by the deputies of such clerks and prothonotaries. and by all magistrates authorized. by the Jaws of or pertaining to any Bucb State, District, or Territory to ad..minister oaths.-Aei -July St 1918 <# Stat. Part e. 880; U. S. Code Annotated. Sec. DSa).

(LeavespaoororlJ1l:u1lnB)
……..

255

APPENDIX 14
SUBPOENA FOR CIVILIAN WITNESS

SUBP<ENA FOR CIVILIAN WITNESS
The President of the United States to Claude m. Rickaby
Line out when inappro[riate “before—–, a —-, designated to take your deposition to be read in evidence.”
When used enter nam, grade, and organization, if any.
When used, enter official character, if any, such as trial judge advocate, summary court, notary public, etc.
General (or special or summary) court-martial, etc.
GREETING:
You are hereby summoned and required to be and appear in person on the ••.J5..~!L .••.. day of !l~.9.~!’!ll.~r. , 191.3.., at .7.110••..•..• o’clock •..•.p.•• m., IINM
ji//j//jj/I/i//ji//j///.I/I/!./ rll/I///-//,l.Ij./,I.//,I./-///-/-/I/-/II/-I/./-/lI/-IIIN
I’I#rN4##Yr#/t#/<NrtlW#PI!#N1P1lMWfbefore a •……gllnexaL….•_••……
•…..~9.W.t.:1IlM.t.t!’,l…..••…..•……••……•..•… of the United States, at •..f.Qr.j;..Ylll.~C1.n. •••• ……£’?~~1;>.”‘~ •..Qh~.’? , appointed to meet by paragraph •.._.l!1.. •..•…. Special Orders, No ~?.L , Headquarters ..••?Q.!>.~.J.I)!.~’)MX.~~!1~~.’?~ _ _.. dated .9..Qc.tJlbex , 19!U.•, then and there to testify and give evidence lIS a witness for the …….•…lilU:ens.e _ _._.. in the case of’ ..~JJ1!l.t-.E!..”.Q!m.1.•..JJ.E!r.r.tl;k•.•15.~Qp..3.~ J:1!W.P;w.Y..A U3.j;)!…••_•••••
Enter name, etc., of accused or other subject of investigation.
Line out when inappropriate “and you are hereby required to bring with you, to be used in evidence in said case, the following-described documents, to wit”
.Infantq E.ort..lI”ilson Ohio. .
I#W#IP#/rfrJ’lt#’#1#11Nif’/!I’ft’N:1f-Y.#~#/1tNrf##N¥¥’!rf¥lfrlrfAA6l’· MiNJIrNr/ciMI.J:IIJ#.ltN#f.//ji/iji/lilij//III/i/ji/j//jj/ij/./jj////././j/…
And have you then and there this precept.
Dated at _.¥.~~~..~.;!!l.’?~I..g~2. _ this •.•._.g~_ day of •.••••p.’!c:~!>.~L_._ •••:••.., 19.111. d.P~ {!.& I ~
…._…..~!.~.~..Q.!•.Q~.~!.~EJ. ..g!!P.!>.!.X~..t•••.•.. (To besuOOCribed bYT~~rey.Idg~ A3;o~~te
TM witness is requuted to 8ubscribe on one copy ot the Bubpama t1uJ following and.w return to the personuruing the subpama tIuJ ropy therool 80 subscribed.
When service is by mail the witness will be requested to subscribe this acknowledgment of acceptance on one copy and to return same to the officer who issued the subpoena.
This proof of service will be filled oru when service is personal, and the copy thus completed, be returned to the officer issuing the subpoena.
• _ ••••••••.•••••••••, 19._.••

I hereby e,ccept service of the above subpOllla.


P~app..-.bbefam.matlm;undSl..W>e’J:..wthQlity;,~,.Lt..Q~!,·Po.:..!.C!!••••• who, being first duly sworn llCC?rding to law, deposes and saY.” that at .~Y1J.l.e….Q!I1o…• on •••JJ..p.~.c:!m1;>!!!: , 19.11.3.., he personelly delivered to •..QJ,.lJ.J!~J!.!…B.~Is!mY. .

••_._•••_.._._._•••••••••••.•. in person &duplicate of the within subpOlll&.
….&~’.’:±:k …(2..L~__._..
(SIgnllture)
SUBSCRmED AND SWORN to bsfore me at r2tl•.lI]lAO.ll.•••0.b.1.lL. •.• this ••..••.~.3.t;h…. day of •••••.D!!.9.~ll.E!” ……..•…•…, 19..4J.
-L~r.~_.d(~
(BIpWwe)
VALENTINE QUADE
-_._ ~~.g~~!..~~~ ,.
(Orade.~ &culoalcialabuacCor)
w. D’I A.. Q. O. Form No. U7
Mar. 10, 19Z3

App.l4­
INSTRUOTIOlllS
J. ArtiClles of War.-(a) PrOces8 to obtain toilnesses.-Every trial judge advocate of a general or special court martial and every summary court mnrtial shall have power to issue the like process to compel witnesses to appenr and ‘testify which courts or the United States, having crlminal juriBdJct!oJ:!., may la.wfully”i.8sue; but such process shall run to any part of the United States, Its Territories, and possessions. (A. W. 22.)
(b) RejtUal to appear or teslify.-Every person not subject to military law who, beiDg duty sub­prenned to appenr as a witness before any military court. commission, court of inquiry, or board, or before any officer, military or civil. designated to take a deposition to be read in evidence before such court, commission, court of inquiry, or board, willtu11y neglects or fefusea to appear, or refuses to quaJ.liy as a witnesS, or to testify. or produce documentary ,evidence which such person may have been legally Bubpeenaed to produce, sh!ill be deemed gUilty of a misdemeanor, for which such person·~all be”PWushed on ln1’ormatlonln the district court of the United States or in a court ot original criminal jurisdiction in any, of the territorial possessions or the United States, jurisdiction being hereby conlerred upon such ·coUrtS for such purpose; Bod It shall be the duty of the United States district attorney or .~he officer prosecuting tor the Gove~ent in any such court ot original criminill jui”isdiction, on the ceriification of the facts to him by the military courl, commission, court of inquiry, or board, to file an information against and prosecute the person so offending, and the punishment of such person, ~n conviction, shall be a fine of not more than $500 or imprisonment not to exceed six months, or both, at the discretion of the court: PrOffided, That the fees of such witness and his mileage, at the rates allowed to witnesses attending the courts of the, United States, shall be duly paid or tendered said witness, such amounts to be paid out of the appropriation for the compensation of witnesses: Prwided funher, That
every person not subject to military law, who before any court martial, military tribu.nal, or military board, Or in connection .with, or in relation to any proceedings or investigation before it or had under any of the provisions <If ,this act, is guilty. of any of the acts made punishable as oifenses against’ publio justice by any provision of’cha:i:)’t~r 6 of the fl:ct-.of March 4, 1909, entitled “an act to codify, revise, and amend the penallaw8 of the United States” (volume 35, United States Statutes at Large, page 1088), or any amendme.nt thereof, shall be punished o.s therein provided. (A. W. 23.)
2.
Fees and allowances tor witneB8es.-Witnesses, other than persons subject to military law, who are required to appear before a court IDartial, court of inquiry, military commlasion, or retiring board, or before nn officer (civil”or military) empowered to take depositions, and there to give testimony under oath to be used before a court, are entitled to receive fees and allowances as fixed by law. (See AR 35-=4120.)

3.
Tender ot tees.-When ordered by proper authority the f~ of the witness and hIs mlleage at the rates o.llowed, including fees for one dsy’s.sctual attendance and Dilleage for the journey to. and from the pla.ce where the witness is to appear under the subpcena, will be tendered or paid in advance by the proper finance officer. In order to maintain a prosecution under the 23d ArtJde of War for neglect or refusal to appear, a person must Bot only be duly subpCenaed but be paid or tendered fees as indicated. (See par. 97, M. C. M.,

~928J
IG-3CII…..1
-257
APPENDIX 15
REPORT OF RESULT OF” TRIAL BY TRIAL JUDGE ADVOCATE

Jon Wilten. Ohio 1 July 1944
SUbJect: Report of !tesult of Trial.
To: Commanding Officer. ll3th InfantrT. lort Wilson, Ohio.

1.
The general court-lIl8rtial appointed b)’ par 3, SO 147, 50th Inf Div. 26 May 1944. tried Private John Derrick, 21406324. Co A. l13th Inf. on 1 July 1944.

2.
The court made the following findings:
Bp. Ch I -Not Guilty.
Ch I -Not Guilty.
Bp, ell II -Guilty.
Ch II -Guilt)’.
3.
The court sentenced the accused as follows:

“To be dishonorably diseherged the service. to forfeit all :paY and allowance due or to becoJ:le due and to be confined at hard labor. at such place as the reviewing authorit)’ IlIll6″ direct. for five
rfL~1/&r~
m.;JUT: NOO~” Capt. Inf. Trial Judge Advocate.
Cop:l’ to: Appointing Authorit)’ Prison Officer Division JA CO of Accused
APPENDIX 16
VOUCHER FOR FEES AND MILEAGE OF CIVILIAN WITNESSES
War Department, Form 889 (revised)
D. O. Voucher No
u ••••••••••••••••••••
WAR DEPARTMENT Bureau No..——…-..–……..•…._ PUBLIC VOUCHER-PERSONAL SERVICES
PAW BY
Compensationfor Civilian Witness and/or
Reporter, Civilian, or Enlisted Man on Detail

Talll UNITED STATES, Dr., To .._.Cllludl..M..•.BiJ:klllll/’._.._ __.._ _….•……——. Address ..21li..lI:lm._S.~ftl~ •..M!IrY.llrtlJ,!!•..Q!lj,!!——.
crvl’L{Aif~cI Kt~OR~dER-~~L)sf~geM~J~~/d~Jij,r a~~:r:g ~:Cor~t 8ub~isteDcc as: * ttl WITNESS; 0 REPORTER• …_ __._.Q!!!!!!..”*_~!!!!r.~_.~H!!J _.._ _”‘ “._..’ ., .._ _!’9…t.~~.~’!!’.!1J __ c:~~~~’!~-‘._.!l~~~ _.
(‘l’,~.ol …….) l~l ..d

or giving deposition before .-··–••-·.-.–·-·w~;;;,,;j;;,;,-,–·–_·_-····-·····_··· at ··-···—-·····–··ii.:;;)····–·····—-·· Date —-..•
~:o~~~~~f~~:~:~~~~n.~~~~::::;~;:;:~c:~~~~;;~;:.~~~;;:~;~;;;~::::::::::::::::::’:’::::::::::::::::::::::::::::::::::::::::::
~:~:;:::~::-‘;:,~~~~~-:~.:=:=~:~:~~::::::::::::::::::::~=::::::::::::::::::::::::::~,~:::::::::::::::::::)~;;~~~~~~~!:)HL:
(Attae.b certlfled COPJl’ oC ?!~er COln”acing Lbo court IlIld”or tho 9uhpOII:l)
Fo,”.velf’Om.Mar3:al’.Ule…..Ollo…. …__..__…..’0..J!Qrt..W1111QI!•..CQlllm1nlll•..Q)}.~qn<! ,,’urn.
~~~~~~~~~~~:~~~~~~~~~~ ::9:;~~~.1:~.~~_~~~:~~~~~;~ :r:v:~~eg ·~~·~~~-~;~~~:i~~-;;~~~~~c:c:rO:t::~~:nt:~~~~~~~~~~~-.~~~~~’.
__… .. _days attcnd2.nce nt S._~…5Q..__… per day__…..__… …. ……•…..__….. ….. .” … ….
•… _.•…_ days at S.•……….•….• per diem in lieu of suusistence. ….__….•.••….•…… …. ‘.” .”_’ Additional anO~’aDccs for reporting as itemized on the reverse hereOf_ _._..~~~~.~~_~.~~_;~;~~~~~~~~~~~~~~:~.-”
“d I h {PIIJ’eewWNOTllgethlscpacel
p&~e~~Rtt::~f~~a~:sh~:tbb;:na~~~~~~J~:’de tt~t t~si i:ma ho¥:c~~:J Differencea _ _ ..__
AMOUNT
~~

.l..
!W._.~
…1…..lilL_.
~
‘::~90:~~~
__ _. __ _..•
(::!~~::)th:~:e:e:~.m~~!:~.­
..-. ::i;;~~~;:~;=;~;:;~~;:;;:;~;.:.:_:::::::: ~:::::=
Date ..15…De.c_..l9.43 __. Title.._Jiltn.e.BS.. .._.__ _ _ _ (Signatureorinitialf;)····_·_·_··_· ··__·_7··__·_· ·· ···· _ I CERTIFY that the above acc.ount is correct; that the claimant actually performed the services claimed which were authorized
~r~~a~;icrt:~;ef~:Jh:iie~dt::~tb~_~~NOTe~~~r;tldi~r:;~~~tet~~~~vs:;:J:~r:~;n&~:taf::J~~n~~v:Jd
*;~:\:~e;~ecf= is made for ~.diem ~n lieu of Bubsistence the claimant was iD.8~teDda~~JA.~ 8 point so distant from his residence so as to prohibit return thereto from day·to day and DO Government transportation was ~~stl’rv~
~:::0’iE;.D~RC:i!)~:;X~.i;~:3::::::. ·····—·~~i.:~::%-::~~i~~~;~::=~:::::::::::::::::::~
ACCOUNTING CLA89lFlCATION (For ColrlPlelloD by AdminlBt”,U’I’e 016((‘)
_.A.p~~~~~~1kO~.k~~6l.’.ON’1………__…._APPR.O.P~:T.’.~~.~I~LE. ..5~~==:~~. __…_1 ~ __~~P_RA~:O=:~.ON .._._

_Is
~ .._.._~~~~~~:~~~.~:y~:~:~~:::.::: I..$::”:~;~.~;.:: ..I_ ~:~~~:r.~=s\l. _:….,~:~~OS:T: r:c:~;~~~:::::::: :::::~:~:~~::~:~ I”;~:~~~~~:;~::::=
Paid by {CheCk No  —­ -..—­ -, d.’ed  _.  ..  .  ..,19_  for $_ ••••••••••••••••••••{:f~:~~;;.~::h:~:~te~:~:~..
_==Cas=:-‘ch, __ ._  __•.• on .  ..  _,  I~  (OR1~i.~AL)  h  __._••_  •••••__ ••  ••  •••_ ••__••__•••••••_._.__e •••
‘Check lIlark 8:JplleablB block.  (B.lca&… ~  PuW
“Wbell used by .eD.lislilll ~r~o~llel C>Jr repor~rs’  Coos, delete tbl3 phrll8e.  I~Ul.l

259
632260°–45—-18
App.1,6
WAn ARTMENT
Form. (Revised) D. G. Voucher No..•.•………..__…__… CoJ:~w Ibed bb. It WAR DEPARTMENT Bureau No. …__•… ..,… . .__.
August 17,
PA:!D BY
PUBLIC VOUCHER-PERSONAL SERVICES
Compensation for Civilian Witness and/or
Reporter, Civilian, or Enlisted Man on Detail

THE UNITED STATES, Dr., To … .__. .Cl.au.dIL.M~_1li.ckablr
(Foraecot’PoylngOffiee)
Address _.21.6__:Elm_St.r.e.e.t…_Mar.1..ville.•..DMo. ._. … . •
For travel performed, services rendered, and/or per diem in lieu of subsistence as . . .
._•…….. .G_~.t’-_~.r.ll-.l __c.Q_\U’.t._~~~~—.————-. at .Far.t._Wll.s.o.n..__c.~.!pmb.u.s. ..-.Q.h1Q————–­
(orusein…•• …..••.••_••.. .•……-. .’._.•…… convenedat.. :…__•…•.•….__ •••__•…._. . ._._..•..
~:~::lo;i:r~:~~:~_~~~e~:~~i~~~~~~~~~~~~~~~~~~~:~~~~::~~d~:~~~::~::~.~.~~~:~:~~~~~~~~~~~~~~~~~~~~~~=~l~~~~~~~~~~~~:~~~~~~~~~~~~~~~~~~~~~~~~:~
Dates of attendance ._._15..Decemllol::..1943..••••…••.._._…..• ._ . _•..••….•..• ._ __•.__._……..• _.__. Discharged from further attendance •.•……__..•….••••..•……..•__.•..•..__ –__~.b~. __ J_~.oE;Q.c.eJJllle..r..~9_43 ..• (At!.aehcertiOedcopyolordorcooveolngtbecourtlUld oftbe3ubpooR)
AMOUNT
UOLLA.R31~
For,,,,’.1from .M!!T-Y-llYl.llll+__OhiQ to_Ji’llrt__Wi.1so.n.__-Co.lumllua,__.Qh1Q1ndre’urn. S .
0_
……….__2.6………• miles traveled at _••(~; per mile __~ __ ._ . (Number of round trifl9.•_~•…)__ __ ~ 40.__ . ~ …..• •..•….. days at $_••••••••_•••••••• while traveling to and returning from place of attendance_•…•.•__._.•.••~_ ~.•.•….__ •..••.•••..•
…… _. ••• days attendance. at $-.-1…50-per day _ ……•. _ ••….._…..•.. _. ~ ID . …….._._ __._…•daysat$_.__••..••••••_.__perdieminlieuofsubsistcnce _~_~ __ ._….••__…..•._._ .__._ _••••….. Additlonnlllilownnces for reporting ns itemized en th~ reverse hercof __••.••._. __ .__•…•__._…••_= .:.:.:..:.:..:. AMOUNT CLAfMF:O••• •••• __ .. •••••: $.:—-2 ~
(Payee “,UI ~OT U9D th18 8PlIro)
Differences•••.•_……..•.•._.__….•._ -“•••_•….•.••.•….•

….._——_==
~~
Claude M. Ri ekab;o-
Account verified; correct for_._…….. $ ••••.••• _•• ••

15 Dec 1943 Witness
(Signature or initials) ._ … …._……• .•..••••.•
MEMORANDUM
2.90
Memorandum, 15 December 1943
·260
APPENDIX 17
WEEKLY REPORT OF TRIAL JUDGE ADVOCATE

Fort Wilson. Ohio 26 May 1944
Subjeet&     Weekly report ot trial judge advocate ot general court~ial appointed by par 35, so 106, Hq 50th In£ Div, 15 April 1944.
Tot     Commanding General, 50th Inf Div, Fort Wilson, Ohio.
Report rendered for week ending Friday, 26 May 1944 by captain Daniel A. O’Brien. trial judge advocate of the general court-martial tor the 50th In£antry Divipion.
a. Cases awaiting trialI
Expected Date
Accueed
Referred
cause ot dela;yll
~
Doll. Pvt John A, 23 May 44 30llay 44 Co A, 109th Inf
Peterll, CplE Frank. 10 May 44 A”oiaiting d6pOllitions BtJ7 C, 407th FA Bn forwarded 11 Ma;r 29 Kay 44
b. Cases being reportedI
Expected Date ot
~  Tried  cause ot dela;yll  Return ot Record
James, Pvt Tom D. Co A, 50th ,&lg Bn­ i9 Kay 44  RepOrter in hospital 21-25 Kay ,  27 lIay 44
Potts. pte John, 50th~ Co  25 May 44  28 \lay 44

*Explanat:l.on ot delay in every case in hands ot trial judge advocate not promptly brought to trial after five days from date of serviceot chargee upon accused and not cubmitted to Division within five days of date of trial. Use additional paragrapha, it necessary, 11′ space provided not adequate.
Signature of Daniel O’Brien
DANIEL A. O’BRIEN,
Capt, ~GD,
Trial Judge Advocate.

APPENDIX 1-8
INDORSEMENT RETURNING RECORD OF TRIAL FOR
CERTIFICATE OF CORRECTION

all Hartford, John J. (M) __Ind. Hq, 150th Inf, Jort Wilson. Ohio, 4 August 1944
Tol     capt llBn1e1 A. O’Brien, Inf, Trla1JA, 160th Inf, POrt Wl1son, Ohl0.
1.
The record of trlal by special court-Diartlal ln the case of P\’t John J. Blrtford, 3al16543. Co At l09th Int, returnel!. here­vl.th, falls to disclose that Cpl Tlmothy B. Maguire, a witness for the prosecution, was sworn.

2.
It this. vl.tness wae ln fact sworn, a cert1:t’lcate of correction prepared ln accordance wi th MOM, par. 87J!.,vl.llbe slgned by the president of the court and the trlal judge advocate. a copy served on the accused and the orlginal sent to this offlce together wi th’ the record of trial.

By I’rder of Colonel MtlLBOONEY:
Signature of E. T. Burstein
E. T. BURSTEIN,
cap.t.·III1′. Alijutant.
1 IDOl. Becord of trial
APPENDIX 19
CERTIFICATE OF c CORRECTtON
UNITED STATES
v.
Private John J. Hartford, 32016543,_
Company A, l09th Infantry.

The record of trial in the above case, which was tried
b.Y. Special Court-Martial appointed by pa: 38, 5.0.197, Hq 150th
Infantry, dated 15 July 1944, at. Fort Wilson, Ohio, on 1 August
1944,· is corrected by the insertion on page three .iJJlrled1atel~
following line 9, of the following:

“Corporal Timothy B.• Maguire was sworn as a witness.”
This correction is made because the witness was sworn
at the time of trial b11t a s.t.at.ement to that effect was omitted,
in error, from the record.

~,E~
HOLLINGSI’IORTH E. IlELNICK, Lt Col, Inf, ~~a.. (JP~ President.
DANIEL A. O’BRIEN,
Capt, Inf,
Trial Judge Advocate.

Copy of this certificate received by me this 5th de;y of August 1944.
<+A~).~
t!’-;~~ J. HARTFORD, 32016543.
APPENDIX 20
INDORSEMENT”RETURNING RECORD OF TRIAL FOR
PROCEEDINGS IN REVISION

201 Gabney, Theodore O. (Enl) Ind. 1Iq.150th Int’, Fort Wilson, Ohio, 10 August 1944.
To:     1st Lt. Stanley G. Pettigrew, Trial Judge Advocate, Hq. 151lth Int’, Fort Wilson, Ohio.
1.
The record of trial b.r special court-martial in the case of Pvt Theodore O. Gabney, 14117877, IIq Co, 158th Inf, is returned here­with for revision in accordance with MCM, par 83.

2.
The record recites that the trial jud·ge advocate read totlte court tlte evidence of previous convictions contained in tlte certificate attached as Prosecution Exhibit 6.

3.
Inasmuch as the second offense contained in tlte certificate was committed more titan one year prior to the offense charged-less _ periods of unautltorized absences as sltown b,y the findings in tlte case and by the evidence of previous convictions,-tltat offense sltollla not Itave been considered by tlte court in deliberating on its sentence (MCM par. 79£;).

4.
The members of tlte court present at the original trial sltould reconvene, vacate tlteir previous sentence, and adjudge an dppropriate sentence “itltout regard to tlte previous conyiction mentioned (MCM, par. 8~).

By order of Colonel ~~OONEY:
Signature of E. T. Burstein
E. T. BURSTEIN, Capt, Int’, Adjutant.
APPENDIX ’21
ACTION OF REVIEWING’ AUTHORITY APPROVING PART
OF FINDINGS AND SENTENCE

HF.AlJQUARTERS 149TH ARMORED INFANTRY BATTI,LION
Camp Polk, Louisian~, 19 July 1944.
In the foregoing case of Private Alonso j(. Schiedman, 26843214, Company D, 149th Armored Infantry Battalion, Camp Polk, Louisiana, only so much of the findings of guilty of ths specifica­tion of Charge II and of Charge II as involves findings that the accused did, at the tiIUe and place alleged, fan ,to obey the lawful order of a noncommissioned officer in violation of Article of War 96 1s approved. The findings of guilty of the specification of Charge III and of Charge III are disapproved. Only so much of the sentence as provides for confinement at hard labor for three months and for­feiture of $33.00 per month for a like period is approved and will
be duly executed. The Post Stockade, Camp Polk, LouisiaJ1a, is desi,,­’~ted as the place of confinement.
~~
TODD I.JIDQUOIT; Lt Col, Inf, COJ:Ullanding.
APPENDIX 22
SPECIAL COURT-MARTIAL ORDER

m:ADQlJARTERS 830 :!’IELD ARTILLERY BATTALION Fort Knox, Kentucky
4 September 1944
Sllecial Court~Martial )
Order. No. f)

Before a special court-martial which convened at Fort Knox.
Kentucky, purmiant to paragraph 1. Special Orders No. 227. this head­
quarter., 14 A~.t 1944, was arraigned and tried:

Private JOSEPH K. POPKINS, 31119637, Battery D, 83d. Field
Artillery Battalion.

CHARGE I: Violation of the 65th Article of War.
Specification: In that Private Joseph K. Popkins, Battery D,
83d. Field Artillsry Battalion, did, at Louisville. Kentucky, on or about
26 August 1944. wrongfUlly attempt to strike Corporal James Gutowski. a
noncocm1ssioned officer on the face with his fist. while said Corporal
James ClUtowsld. was 1.n the execution of his offics.
CHARGE II: Nolle prosequi by direction of convening authority.
CHARGE III: Violation of the 85th Article of war.
Specification: In that Private Joseph K. Popkins. Battery D,
83d. Field Artillery Battalion, wa., at Fort Knox, Kentucky, on or about
27 August 1944, drunk on duty at drill.
PLEAS
To all ~Spec1tications and Charges: Not. Guilty.
:!’INDINGS
ot the Specification, Charge I: -GuUty, except the words .while said Corporal James Gutowski was in the execution of his offics,. of the excepted words not guilty.
Of Charge II Not Guilty but guilty of a·violation of the 96th Article of War.
Of the Spscification. Charge III, and Charge III: Not Guilty on motion by the defense.
To bs confined at hard labor. at wch place as the review­ing anthor!ty may direct for three months and to fortei t $33.00 per month for a like period.
The sentence was adjudged on 1 Sept ember 1944.
App.22
The sentence is approved and will be· duly executed. The Post Guardhouse. FOrt Knox. Kentuck7. is designated as the place of confinement.
By order of Lieutenant COlonel BAllRELL:
I. E. WEED, capt, FA, Adjutant.
·omCIALI
~6 :d~
I. E. WEED.
capt, F. A.,
Adjutant.

267

APPENDIX 23
SPECIAL COURT..;MARTIAL ORDER–ACQUITTAL

HEADQUARTERS 8JD FIELD ARTILLERY BATTALION
Fort Knox, Kentucky

20 July 1944
Special Court-Martial )
Orders, No. 76 )

Before a Special Court-Martial which convened at Fort Knox, Kentucky, pursuant to paragraph 1, Special Orders Number 164, this headquarters, 12 June 1944. was arraigned’and tried:
Private JUlES D. CRUBY, J9476212,HeadquartersBattery, 8Jd Field Artillery Battalion.
CIL\RGE: Violation of the 9Jrd Article of War.
Specification: In that Private James D. Gruby, Headq\Ulrters Battery 8Jd Field Artillery Battalion, did, at Fort Knox, Kentucky; on or about 5 July 1944, with intent to do him bodily herm, commit an as­sault upon Private Robert 1′. Donn, by striking him on the head with a tent stake.
PLEAS
To the Specification: Not Guilty To the Charge: Not Guilty
FINDINGS
Of the Specification: Not Guilty Of the Charge: Not Guilty
The Court thereupon acquitted the accus~d on 16 July 1944.
By order of Lieutenant Colonel McGuffey:
L. E. JONES, Capt, FA, Adjutant.
OFFICIAL:
·~C C1rnp~j
vL~. JO~’~-
Capt, FA,
Adjutant.

APPENDIX 24
SPECIAL COURT-MARTIAL ORDER-JOINT TRIAL

llEADquA!lTERS,A!lMORED CENTER, FORT 1OI0X, KENTUCKY
21 August 1944
Specta1 Court-Martial
Orders, No,. 42

Before a special court-martial which convened at Fort
Knox, Kentucky, pursuant to paragraph 8, Special Orders Number 167,
this headquarters, 15 June 1944, as amended by paragraph 2, Special
Orders Number 185, this headquarters, 3 July 1944, was arraigned and
tried:

Private EDDIE G. ROUNDIE, 37182366, Dstachcent Medical
Department, Fort Knox, Kentucky, IUld private JULIUS R. BRUNTON,
18032711, Detachment Medical Departmsnt, Fort Knox, Kentucky.

mvL~GE: Violation of the 69th Article of War.
Specification: In that Private Eddie G. Roundie and Private
Julius R. Brunton, Detachment Medical Department, Fort Knox, Kentucky,
having been duly ~laced in confinement in the Post Guardhouse, Fort
Knox, Kentucky, on or about 20 July 1944, acting Jointly, and in pur­
suance of a Comeon intent, did, at Fort Knox, Kentucky, on or about
22 July 1944, escape from said confinement before they were set at
liberty by proper authority.
Private Eddie G. Roundie:
To the Specification and the Charge: Not Guilty,

Private Julius R. Brunton:
‘1’0 the Specification and the Charge: Not Guilty.

FINDINGS
Private Eddie G. Roundie:
Of the Specification and the Charge: Guilty.

Private Juliue R. Brunton:
Of the Specification and the Charge: Guilty.

SENTENCE
Private Eddie G. Roundie:
To be confined at hard’labor, at such place as the reviewing authority may direct, for six months and to forfeit $33.33 per month for a like period.
Private Julius R. Brunton:
To be confined at hard labor, at such place as the reviewing authority may direct for s1>: months and to forfeit $33.33 per month tor a like period. (one previous conviction considered).
The sentences were adjudged on 17 AUgl18t 1944.
The senteuees are approved, but as to Private Eddie G. Roundle, three months of the eonfinement at hard labor imposed are remitted. AI thus modified the sentenees will be duly executed. The Post Guardhouse. ~rt Knox, KentuCky, is designated 8S the plaee of confinement.
:By order of Colonel UPDYKE:
T•. T. ST1llJMPLEMEYEIl.
Maj, Inf,
Adjutant.

OmOIAL:
c:r{~
MaJ, Inf,
Adjutant.

APPENDIX 25
DISTRIBUTION LIST OF SPECIAL COURT-MARTIAL ORDERS
(Prepared for Units in 50th Infantry Division)

No, of Copies Distribution*
J The Adjutant Genaral, Attention: Enlisted Branch, War De~artment, Washington 25, D, C, 1 The Fiscal Director, Vlar Department, WaShington’ D, C. ( in desertion cases only) 2 To be forwarded with s?ecial court-martial record 1 Commanding General, 50th Infantr,y Division 2 Finance Officer, 50th Infantr,y Division 1 Adjutant General, 50th Infantry Division 1 Commanding Officer of accused’s organization 1 President of special court-martial 1 Trial Judge Advocate 1 Defense Counsel 1 Individual. tried, 2 Post Prison Officer
__________—, by _
Distribution made:
* The distribution listed above meets the requirements of par. )g (), {4), AR )10-50, 1 December 1944.
APPENDIX’ 26
SPECIAL COURT-MARTIAL ORDER” REMIT,TING
UNEXECUTED PORTION OF SENTENCE

IlEADQUARTE:RS l09TH INFANTRY
Fort Wilson, Ohio

20 October 1944.
Special Court-Martial ) Orders, No 51 )
The unexecuted portion of. the sentence adjudged against Private Pe!’er Stiles, 37024891, Servi.ce. Company, l09th Infantry, by special court-martial, promulgated in SCMO No. 45, this headquarters, 12 October 1944, insofar as it relates to confinement at hard labor, is hereby remitted.
By order-or Colonel BILLESBY:
V. J • PAKULA,
Capt, Inf,
~utant.
OFFICIAL: ra.. (JJ~
V. J. aAKULA,
Capt, Inf,
Adjutant.

APPENDIX 27
SPECIAL COURT-MARTIAL ORDER SUSPENDING
UNEXECUTED PORTION OF SENTENCE

lIE1lDQUJ:.RTERS l09TH INFANTRY. Fort Wilson, Ohio
27 October 1944.
Special Court-Martial ) Orders, No 53 )
The unexecuted portion of the sentenoe adjudged against Private Keith A. Coward, 31682436, Service Company, l09th Int9Jltry, by special court-martial, promulgated in SCMO No. 46, thishsadquarters, 12 October 1944, is hereby suspended.
a.r order of Colonel BILLESBY:
V. J. PAKtJ’IA, Capt, Int, Adjut9Jlt.
OFF.ICIAL: 20 . ~
.V. J ffAKULAit
Capt, Int,
AdJut9Jlt.
APPENDIX 28
SPECIAL COURT-MARTIAL ORDER VACATING
SUSPENSION OF SENTENCE

HEADQUARTERS l09TH INFANTRY
Fort Wilson, Ohio

9 February 1944.
Special Court-Martial Orders, No. 15
So much of the order puhlished in SCt.10 No. 83, this headquarters, 21 December 1943, as suspends execution of the unexecuted portion of· the sentence in the case of Private Haljmar Dynowzki, 34824894, Headquarters Company, 1~9th Infan· try, is vacated and said sentence will be carried into execution.
By order of Colonel BILLESBY:
V. J. PAKULA, Capt, Inf, A<lj utant.
€lFFICIAL:
r:~AKe~
Capt, Inr,
Adjutant.

APPENDIX 29
SPECIAL ORDER REMIUING SENTENCE OF
SUMMARY COURT-MARTIAL

JlEADQUARTERS l09TH INFANTRY
Fort Wilson, Ohio

10 March 1944.
Special Orders
No. 70

EXTRACT
** *
14. So much of the unexecuted portion of the sentence adjudged by Sum CM, Case No 47, this Hq, 27 Feb 1944, in the case of Pvt Thomas M Trembone, 37182365, Co D, 109th Int, as pertains to confinement at hard labor only, is remitted.
.*
* **
B,yorder of Colonel BILLESBY:
V. J. PAKULA, Capt, Inf, Adj.
OFFICIAL: Yo . (/J~
V.J.~A,
Capt, Int,
Adj.

632260′–45–19
APPENDIX· 30
SPECIAL     ORDER VACATtNG VOID SENTENCE OF . SUMMARY ·COIJRT-MARTiAL
IlEADQUARTERS 109Tli IN!’ANl’RY
Fort Wllson, Ohio

17 December 1944
Special Orders )1
No. 251 )

EXTRACT
*. .. .. ..
*
5. Proceedings of Sum CM, Case No. 122, th1s Hq, 13 Dso. 1944, in the case of Pvt Harold E. Hof’henstein, 37035063, Co 1.1, 109th Inr, being void, the findings and sentence in said case are vacated. All rights. privileges and property of wh10h Pvt Hof’hsnstein has been deprived by virtue of said sentence 11111 be restored.
By order of Colonel BIUoESBYI
v. J. PAKULA, Capt. Inr, Adj.
OFFICIAL I
2!1J.~
;.-q: PAKULA.
Capt, Int.
Adj.

APPENDIX 31
ACTION OF REVIEWING AUTHORITY
MITIGATING SENTENCE

HEAiJQUARTERS 920 IllFANTRY
Camp Polk, Louisiana 23 September 1944
In the foregoing case of Private David L. Belasco, 39786241, CoJDll&llY E, 92d Infantry, th~ sentence is approved but eel’much thereof as relates to confinement at hard labor is mit!­gated to hard labor without confinement for one month and reatric­tion~ the limits of Camp Polk, Louisiana, for a like period. As thus modified the sentence will ·be duly executed.
~t:~4
ROGER E. MULLIGAN Col, Inf, Commanding.
INDEX

Absence without leave: Paragraph Page Entries in morning reports, as proof of _ 97a 93 Lesser included offense of desertion _
106 105 Table of maximum punishments not applicable to _ ‘119d 113 Accused: Character oL ___________________________________________ 99d
99 Restraint oL____ _ ______ _________ ________ ____ ________ _ 18
15 Rights of, as a witness 76b, App. 1
69, 152 Rights of, in investigation_ _______________________________ 43b 38 Service of charges on ·___________________________ 66b
57 Statement of, in investigation_ ____________________________ 44b 39
Accuser:
As appointing authority__________________________________ 53

45 As member of court-martiaL_ _____________________________ 54a
46 Preparation and forwarding of charges by_________________ 25, 26, 33 23, 26,31 Summary of evidence oL _
30 30 Acquittal:Announcement oL_______________________________________ 109
107 Form for special court-martial order-acquittaL . App.23 268 Action by reviewing authority. (See Reviewing authority.) Administrative measures, distinguished from disciplinary punish~
ment _
97 Admonition. (See Reprimand.) Allotments:
Class F deductions 26d, 124e
27,119 Shown on charge sheet-__________________________________ ~ 26d 27 Appointing authority (see also Appointment of courts-martial, Re­viewing authority): Charges,’ disposition of ~ ________ 34-40 32-36 For general courts-martiaL _______________________________ 38 34 For special courts-martiaL_____ _______________________ ____ 37,38c 33,35 For summary courts-martiaL _____________________________ 37,38c 33,35 Appointment of courts-martiaL _______________________________ Ch. 8 43 Special orders appointing courts 55, App. 3 47,217 Arguments__________________________________________________ 90 84 Arrest (see also Confinement of accused prior to trial)____ _________ Ch. 4 15 .Articles of War:
Function
~
Ib 1 History oL -_
Ib 1 Reading and explaining to enlisted men –_ 6a, b 5,6 Training films, use oL ~ _6b 6
Authentication of records of triaL 128e, 129d 123, 124
Capital offenses, defined and listed _ 58b 48

278
Paragraph Page
Certificate of correction of record _
137a 129
Form for _
App.19 263
Certificate of previous convictions _ 29a Form for .. -_———_————-_-_ App. 2 Challenges –_
84
Character evidence. (See Witnesses.)
Charges and specifications: Accuser’s summary of evidence to accompany_______________ 30 Allotments shown on charge sheeL ________________________ 26d AW 104, disposing of by action under 32,33, 35b
c
Changing and correcting_ ______________________________ 32, 36, 66a
Charge sheet, preparation oL _____________________________ 26 Commanding officer, action by____________________________ Ch. 6 Dismissal oL __________________ __________________________ 35a Drafting oL .____________________________________ 25,26 Examples of____________________________________________ 25j
Forwarding oL
Immediate commander of accused, action by Investigation oL
-By accuser before preferring charges
When not required
When required Joint offenses Mutiplication of charges Oath necessary
Officer exercising general court-martial jurisdiction, action by__ Preparation, general rules and sU!1;gestions for _ Previous convictions, evidence of, should accompany _
Promptness in preparing Redrafting :
Reference to trial oL Report on, by staff judge advocate Service on accused
Several larcenies alleged in one specification
Time standard for disposition oL Under AW 96 Unsworn charges
Who may prefer Chronology sheet: General court-martial, form oL Special court-martial, form of Civilians: Jurisdiction of inferior courts over Punishment appropriate’for
~ ~”
31,33, 38c
_ _

_ ~ __ _ _ _
_ ~ __
32, 33 Ch. 7 23c,30 38a 38a 24b, 27 24b 23c,28 38d 24 29a 23d 36
_
37, 38d _
38d
_
66b _ 25i _
40
_ 2
_ 28
_ 23
_ App.2
• App; 3
_ 58a
c
125b
77a,116 69,111 Commanding officers (see also Administrative measures; Charges; Disciplinary punishment):
Power to arrest or confine  _  19  16
Common trials  _  91b  85
279

Summary court, disposition of report of trial, in cases oL _ 141a
Clernency _
28 216 77
30 27 30,
31,32 30, 33,57 26 32 32 23,26 26 30, 31,35 30,31 37
20,30 34 34 22,28 22 20,28 35 21 28 21 33 33,35 35 57 25 36 2 28 20
161
220
48 120 133
Commutation: Paragraph PageAuthority who may commute sentenee _
138c 132
Distinguished from mitigatioIL _
138c 132 Company punishment. (See Disciplinary punishment.) . Confessions. (See Evidence.) Confinement (see also Accused; Arrest; Prisoners; Restriction to limits) :
As disciplinary punishment, not authorized _ 14c 11
Hard labor included in sentence oL _ 121a 115
Forfeiture of pay during _
121d’ 116
PendingtriaL -__–c——————————–18 15
Place of, designation oL _
121e 116
Sentencesto _
121e 116 Correctional measures, as substitute for punishment for minor
offenses _
9 7 Corrective action on records of trial: Form for certificate of correction App.19 263 Form of indorsement returning record for certificate of cor­
recuoll _
App. 18 262
~ature
of _
137 129
Court-martial orders _
Ch.19 137
Authen’tication _
1441 139
Date _
144b 138 Distribution list, special court-martial orders _ App. 25 271 Distribution oL _
145 139
Form and conterits _
144 137 Forms for court-martial orders: Promulgating sentence App. 2, 3, 22 164,
221,266AcquittaL c ~_
App.23 . 268
Joint triaL _
App.24 269 Remitting unexecuted portion of sentence c _ App. 26 272 Suspending unexecuted portion of sentence _ App. 27 273 Vacating suspension of sentence _ App.28 274 Preparation of-~ _
144 137 Rehearing, publication of charges and specifications on _ 1440 139 Remission, mitigation, and suspension, to be published in_ 146 140 Courts-martial (see also General courts-martial; Members of courts-
martial; Special courts-martial; Summary courts-martial):
Amendment of orders appointing  _  55c  47
Appointment of Classes of  _ _  55a, b 3c,49  47 3,43
Form for special orders appointing general court-martiaL  _  App.2  195
Form for specialorders appointing special courts-martiaL  _  App.3  217
Jurisdiction of: ~ature of  (See Jurisdiction.)  _  3b  3
Seating of members  _  83  76
Selection and qualification of members  _  54e  46
Deductions, Class F:
Excluded in determining forfeitures  _  124e  119
Shown on charge sheet  ‘  _  26d  27
Defense CounseL  _  Ch.ll  66
Assistant defense counsel” detail oL Civilian counsel, use of­ _ _  54b, 73 ‘ 73  47,66 66

Defense Counsel-Continued. Detail of, general and special courts-martiaL Detail of military counsel of accused’s own selection. Duties of:
After triaL
Before triaL
During triaL

Definitions:
Accuser
Admission
Appointing authority

Arrest
Articles of War

Capital offense
Charges
Commanding officer

Confession Confinement Deposition Detached uniL ‘ Direct evidence IIearsay
Indirect evidence
Interlocutory question
Lawmember

Military justice
Minoroffense

Officer 7 ~—————-_-­President of court-martiaL Punitive articles
Quorum__
~
Specification
Stipulation
Superior authority
Witness for the prosecution

Delay in disposition of charges c Depositions:Use of, in generaL When admffisible
Desertion:
Capital offense
Intent, proof of by indirect evidence
Table 6f maximum punffihments not applicable to
Detention of pay
Not permitted under, AW 104
Discharge, administrative
For homosexuals -‘
Purposes of

~
Dfficiplinary punffihment As previous conviction Form for company punishment book Form for imposition of upon officer
Dismffisal,mandatory punffihment _ _
_
_ _
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
_
_ _ _ _ _ _ _
_
_
_

_
_
_
_
_
_
_
_
_
_
_ _ _
Paragraph Page
54b, 73 46,66
73 66

77 69
75 67
76 68

53a, 54a 45,46
94 88
49 43

18c 15
1a 1
58a 48
23 20

19b,34 16,32
94 88
18c 15
68c 62
19b, 51b 16,44
82 76
94a 88
92 87
7ge 72
80a 73
la 1
11 8
54a 46
79a 71
lc 2
83 76
23 20

68b 61
51c 44
54a 46
40 36

68c 62

68c 62

58b 48
92 87
119d 113
126 121
76
76
76
76
Ch.3 8
29c 29
App. 6 242
App. 5 240

118 112

281 :
Evidence (see also Witnesses)  ~ ~  Paragraph Ch.14_  Page 87
Accuser’s summary oL  ‘  _  30  30
Admissions againstjnterest  _  96  90
Authentication of writings Confessions  _ _  98b 94,95  95 88,89
Corpus delicti, independent evidence of necessary Proof of, oral and written  _ _  961;> 95  91 89
Direct and indire~t  _  92  87
Documentary-Introduction oL__________________________ ________ ___ 97, 98  93, 95

Listing of on charge sheet_____________________________ 26f 27 Hearsay_________________________________ ___ ____________ 93 87 Morning reports as 97a, 98d 93,96
Extract copies of, admissible when~——————–98d 96 Hearsay entries in_________________________ __________ 97b 93 Proof of absence without leave by entries in_____________ .97b 93 Official writings_________ __ ___ ___ ______ ___ _______ __ 97 93 Morning reports and other unit records as______________ 97a 93 Personal knowledge, must be based on_ ________________ 97b .93 Proof oL c 97d, 98d 95,96 Plea of guilty by accused, evidence of prima facie case required_ 70 64 Service records as ~______________________ 97c 94 Value of property, proof oL_______________________________ 100 100 Witnesses, impeachment oL !__________________ 99 98 Writings, proof oL_____ _____ ____ ______________ __ 98 95 Findings (see also Sentence) Ch. 15 102 Acquittals, announcement oL-__,__________________________ 109 107 Action by reviewing authority upon_ _________________ _____ 135 127 Asto.charges___________________________________________ 107 106 Content and form of 105-108 104-107 Exceptions and substitutions__ ____________________________ 105 104 Joint offenses c__ _ _ ___ _____ 108 107
Lesser included offenses, procedure in voting on ‘___ 106 105 Members, duties in voting on_____________________________ 104 103 Number of votes required________________________________ 103 102 Previous convictions, evidence of read when________________ 109 107 Procedure in voting on ._ ____________________ 102, J09.,102, 107
Flight officers, forfeiture of pay, not authorized under AW 104_ ___ 14a 10
Forfeitures: Computation, form of and policy as to _ 124 118 Disciplinary power under AW 104 does not include ~.-__ 14c 11
Pay subject to ~ _
124d 118 Forms: Action of reviewing authority approving part of findings and
sentence App. 21 265 Action of reviewing authority approving sentence_ ________ App. 2, 3,4 213, 226, 239
Action of reviewing authority mitigating sentence_~ ~ App. 31 277 Certificate of correction_ _________________________________ App. 19 1263 Charge Sheet App. 2, 3, 4. 171,
228, 236 Chronology sheet, general court-martiaL _ App. 2 161 Chronology sheet, special court-martiaL _ App. 3 220
282
Forms-Continued. Paragraph PageCompany punishment book _
App. 6 242 Deposition by civilian witness -_ App. 13 252
Disciplinary punishment, form for imposition of, upon officer__ App. 5 240 Distribution list of special court-martial orders _ App. 25 271 General court-martial order _
App.2 154
Index of record of trial, general court-martial c _ App. 2 193 Indorsement returning record for certificate of correction _ App.18 262 Indorsement returning record for revision _ App. 20 264 Lesser included offenses, list oL _
App. 8 244 Notice of convening of court-_
App.1O 249 Order appointing general court-martiaL _ App. 2 195 Order appointing special court-martiaL -_ App. 3 227 Procedure, trials before general and special courts-martial, outline oL____________________________________________ App. 1 143 Previous convictions, record oL App. 2,3 216,235 Record of trial, general court-martiaL______________________ App. 2, 158
Record of trial, special court-martiaL______________________ App.3 217 Report of trial judge advocate as to result of triaL App. 15 258 Special court-martial order App. 3,22 221,266
Special court-martial order, acquittaL App. 23 268 Special court-martial order, joint triaL App.24 269 Special court-martial order remitting unexecuted portion of
sentence ” App. 26 272 Special court-martial order vacating suspension of sentence__ App. 28 274 Special order appointing summary court-martiaL____________ App.9 248 Special order remitting sentence of summarycourL App.29275 Special order vacating sentence of summary court-“__ App. 30 276 Specifications, wrongful taking and conversion______________ App. 7 243 Staff Judge Advocate’s review_____________________________ App.2 166
Stipulations App. 11,12 250,251
Subpoena App. 14 256
Summary court-martial, report of triaL____________________ App. 4 236
Trial judge advocate, weekly report oL App.17 261
Vouchers, reporters_____________ __ __ ________ __ ____ ___ _ App.2 190′
Vouchers, fees and mileage of civjlian witness App. 16 259 Garrison prisoners: Authority’ to remit or suspend sentences oL_.~ 138,139,142 131,
132,135 Inferior courts-martial (see also Special courts-martial; Summary
Place of confinement for  .  _  121e  116
Restoration,to”dutyon movement;overseas:.. _’.  ”:’:'”  ‘-‘_  142d,  ,13&
General article (AW 96), scope  _  2  2
General courts-martiaL(see also Courts-martial):
Action by reviewing authority, form for Appointment of c ~ Byaccuser  _ _ _  App. 2 50,55 53a  213 43,47 45
Jurisdictibn  _  -’57  48
Orders.  (See Court-martial orders.)
Records. (See Records of trial.)Reference for triaL  _  38d  35
Time for bringing cases to triaLbefore  ‘  _  66b  57
Who may appoint  _  50  43
Homosexuals, administrative discharge oL  _  7  6

courts~martial): Paragraph PageAppointment oL . 51,52,55
43, 44,47Jurisdiction oL _
58,59 48,49 Policy regarding trial by ~ _
37a 33 Interlocutory questions:
I>efined c _
7ge 72 Ruling on by law member _
80c 73 Ruling on by president _ 7ge
72 Insanity, action when suspected _ 39 36 Investigating officer. (See Investigation.) Investigation: By accuser before preferring charges~ ______________________ 23c 20 I>uties of investigating officer “_________________________ Ch. 7 37 Formal, when required ~ _______________________ 38a
34
Procedure 42,43,44
37,38 Recommendations by investigating officer ~ _______ 46 40. Reports of investigating officer____________________________ 47 40 Joint offenses: Charges, preparation oL _
c
24b,27 22,28 Court-martial order _
144n 139 Form of, joint triaL _
App. 24 269 Findings, form oL ‘ _
108 107
Sentence, form oL _
115 110
Joint trials .: ~ __
91a 85 Juilior member of courts-martial, duties ~ _~_ 81 74
Jurisdiction of courts-martial (see also Courts-martial; General courts-martial; Inferior courts-martial; Special courts-martial; Summary courts-martial) _ 56-59 48-4’9
Larceny:Specification alleging . _
25j 26 Wrongful taking distinguished from _ 24a 21
Law member, (See Findings; Sentences.)I>uties during triaL _
80 73 Failure to appoint in general court~martialcase,effect _ 54b 46 Not subject to peremptory challenge _ 84f 79 Presence at trial, necessity for ~ _ 80b 73 Rulings on interlocutory questions _ 80c 73
Lesser included offenses: Findings of, discussed ~~ __
106 105 ListoL . _
ApI>. 8 244 Reviewing authority’s approval of part of findings including__ 135 127 Form of action of reviewing authority _ App, 21 265 Recommendations of investigating officer concerning _ 45b 39
Manual for Courts-Martial, authority for and function oL _ 4 4
Maximum punishments:
I>isciplinary punishment, AW 104-_ 14 10
Table oL –_
119 113
Members of courts-martial (see also Fi·ndings, Junior member; Law member; President of courts-martial; Punishments; Sentences) __ Ch.12 71
Accuseras _
54a 46 Commissioned officers only may serve as ~ _ 54a 46 Examination of witnesses by _
88f 83
Members of courts-martia~-Continued. Paragraph PageExperience and qualification _
54c 46 Number of, to be detailed _
54b 46
Witness for the prosecution as _ 54a 46
Women’s Army Corps, detail in certain cases _ 54c 46 Military justice, definition and function oL _ 11 Minor offenses —-_
9,11 7, 8 Mitigation: Action of reviewing authority, form of App.31 277
_0′ _
Authority to mitigate _
138 131 Distinguished from commutation _ 138c 132Effectof _
138 131
Natureof _
138 131 Sentence, as mitigated, must be included in sentence imposed
by court ~ _
138d 132 Sentence, as mitigated, must be such as court could have im­
posed _
c 138d 132 Morning reports. (See Evidence.) Motions. (See Pleas.) Noncommissioned officers:
Administrativeproceedings totransferorreduceforinefficiency_ 8 7 Administrative reduction distinguished from punishment _ 8 7 Effect of reduction on forfeitures , _ 124f 119 Jurisdiction of summary courts martial over-_ 59a 49
Oath:
To affidavit on charge sheet _

28 28 Witnesses at investigation • _
44a 38
Offenses: Capital_________________________________________________ 58b 48 Lesser included c 45b, 106, 135 39,
105, 127
List of-____________________________________________ App. 8 244 Maximum punishments as to_____________________________ 119 113 Minor ~ 9,11, 24c, 35b 7,
8,22,32 Wrongful taking and conversion, specification for, Form oL_”,-_ App.7 243 Officers:
Disciplinary punishment of, under AW 104_________________ 13, 15b 10,13 Dismissal of. (See Dismissal.) Mandatory sentence in cases oL 118,137b(1) 112, 130 Maximum punishment L___ _____ __ _______ __ 119b 113 Reprimand in case of-___________________________________ App. 5 240 Opening statements___ ___ _____ ______________ _________ ____ 67d,87 61,81
Orders:
Court-martial. (See Court-martial orders.) Special orders appointing courts _ 55 47 Special orders in summary court-martial cases _ 146 140
Pay and allowances: Amount of, to be shown on charge sheet _ 26d 27 Effect of reduction of noncommissioned officer _ 124f 119 Forfeiture ,of. (See Forfeitures.)
Subject to forfeiture _ 124d 118
Pleas and motions: Guilty-Paragraph· Page
Explanation of effect of plea oL Right of accused to plead not guilty Taking evidence after c __ ~
Motion for findings ornot guilty Special To the merits c
President of courts-martial (see also Findings; Sentences): Challenges, duties in procedure on Duties before, during and after triaL
Previous convictions: Certificate as to, should accompany charges
~_
S6e 81
_ 75d 68
~ _
88b 82
_ 89 84
_ 86b 80
_
86c 81 ”
84d 78
“_
79 71 _ 29 28
Disciplinary punishment under AW 104 not considered as _ 17e 14 What convictions may be considered _ 29b 29 Punishments (see also Disciplinary punishments) “< __ ” _” __ Ch.16 109 Authorized: By general court-martiaL ______ __ _________ ______ 57c
48 By.special court-martiaL__ __ ____________________ _ 58c 49 By summary court-martiaL___________________________ 59c 50 Confinement at hard labor________________________________ 121
115 Detention of pay________________________________________ 126
121
Fines “_________ 125
120 Forfeitures 121d, 124
116,118 Hard labor without confinement ._ ____________ 122 117 Limitations as to . 117b, 119
112,113 Mandatory_____________________________________________ 118 112
Restriction to limits_____________________________________ 123
Substitutions_____ ___ ____ _______ _________ _____________ 120

Table of maximum c Punitive articles:
Defined
Types of “””_”Records of trial: .
General courts-martial:
Arrangement
Authentication_ _________________________________
Copies oL c
Correction oL ~ __________________________
Examination by defense counseL __________________
Form and contents -” c __
Preparation oL ___________________________
Special courts~martial:
“_ 119
_
Ie _~ __
2 Ch. 7
“_” App. 2 ____ 128e
” _ 128a ____ 137 ____ 77b
128c, App; 2
. 71b 117 114 113
2 2 122
158 123 122 129 70 122, 158 65
Arrangement 141b, App. 3 134,217
Authentication, correction and examination_____________ 129d 124

Copies of, number and disposition Form and contents Preparation oL
Summary courts-tnartiaL ·
Rehearing:
Court-martial order published after Not authorized when part of sentence approved Power to order ~
129a,141b 124,134 129c, App. 3 124,217 “__________ 71b 65 64,130, 141a, App. 4 54,
124, 133, 236
_  1440  139
_  136  128
_  136  128

Remission: Paragraph Page Effect oC ——-138a, 139 131, 132
Form for court-martial order remitting unexecuted portion of sentence . Garrison prisoners, policy as to remitting sentences oC _______ HoW’ accomplished after promulgation of sentence Power to remit at time of approval of sentence__ ____________ Power to remit after promulgation of sentence Publication in court-martial orders Publication of in special orders Reporter:
App.26 272 142d 136 142c, 146 136,140 138 131 142a, b 135,135 142c, 146 136,140 142c, 146 136,140
Appointment of civilian as : ________ 128b, 129b 122, 124 Compensation oC _______________________________________ 128b’ 122 Detail of enlisted men to serve as 128b, 129b 122, 124
General court-martial cases _______________________________ Special court-martial cases________________________________ Reports of trial judge advocate:
On result of triaL _ Form for.—————————————–­
Weekly, to appointing authority  _
Form for  _
Reprimand:As disciplinary punishment­ _
Form for  _
Terms of, fixed by reviewing authority  _
Restraint of accused  _
Restriction to limits:
As disciplinary punishment  _
As punishment  _
Review by staff judge advocate, Form for  •  _

Reviewing. authority (see also General courts-martial; Speial courts-
martial; Summary courts-martial): Acquittal, no action required 00___________________________ Action on findings
Action on sentence signed in own hand__ ___________________ 128b 122 129b 124
71a 65 App, 15 258 72 65 App, 17 261
14 10
App, 5 240 97 93 18 15
14 10 123 117 App.2 166
131 126 135 127 140 133
Form for ”
Approval of sentence; necessity of-
Defined
c
Disapproval of sentence Ordering execution of sentence Powers incident to power to approve sentence
Mitigation
Rehearing Remission Revision ~~
Suspension_. ———­Powers of, after promulgation of sentence Remission _Restoration to duty Suspension Vacation of suspension ~ Reference to staff judge advocate
App, 2,3,4,21 213,
_
_
_ _ _ _
c
_ _
_
~ c __
_ _
c_
_
226,239,265 131 126 131 126 134 127 139 132 138 131 138 131 136 128 138 131 137 129 139 132 142 135 142a 135 142d 136 142a 135 142a 135
132 126
287
Revision: Form fo.r in~orsement retu!ningrecordfor——–c”__”
ProceedIngs In _
~
Sentences (see also Findings; Punishments) ” Action of reviewing authority on. (See Reviewing authority.)
AdditionaL  ”  _
Announcement oL  _
Confinement. (See Confinement.)Effective date oL c

Evidence of company punishment in determination oL_______
Paragraph  Page
App.20.  264
137b  130
.Ch.16  109
64′  54
16  13
63  53
17b  13

Form and contents 114,115, 124g
110,119
Forfeiture. (See Forfeitures.)
11andatory
~
11embers, duties in voting on ~
11ethod of v{)ting on
Number of votes required
Ordering execution of
Special court-martial orders. (See Court-martial orders.) Special eourts-martial: ,Action by reviewing authority Appointment of Assistant trial judge advocate to serve on __ c By accuser Reservation of power by superior authority__ ”
_  118  112
_  111  109
_  112  110
_  113  110
_  ,139  132
”  140  133
_  51,55  43,47
_  54b  46
_  53a  45
_  51c  44

WhomayappoinL——————————c-__ 51 43
Investigation in cases tried by
Jurisdiction oL
Orders. (See Court-martial orders.)
Records. (See Records of trial.)

Reference for trial to Form for indorsement’referring case for triaL Special orders: Appointing courts
c
Remitting, suspending or vacating suspension of sentence. by summary court_______________________________________ Form for, remitting part of sentence ~ ____________
Form for, vacating sentence ” Specifications. (See Charges and specifications.) ‘Copies of, to be prepared for members of courL Correction of, by investigating officer Forms for, alleging wrongful taking Stipulations:
Amounting to a complete defense or admission of guilt As to facts As to testimony Should be entered into when c
Summary Court Officers (see also Summary courts-martial)
,_
_
c
c
._ _ _
38a 34
_
58 48
37,38d  33,35
App. 3  230
55  47

142c, 146 136, 140
App. 29 App.30
69b 42 App. 7
, 68b
Accuseras______________________________________________ 54a Conduct of triaL c __ -c 63 Duties before triaL ______________________________________ .62 Duties respecting record of triaL ‘~ 64 Not subject to challenge__________________________________ 84a Qualifications to be possessed byc————————–54c, 61 Witness for prosecution, as_ _ _____ __ ____ ______ _ 54a
68b, App.ll 68b, App. 12 ” 68b Ch. 9
275 276
64 37 243
61 61, 250 61,251 61 51 46 53 52 54 77 46,51 46
Summary courts-martial: Action of reviewing authority on-Paragraph PagelFormoL_——————–7______ 140 133 In general__________________________________________ 131 126 Subsequent to promulgation of sentence________________ 142 135
Appointment of summary courts-martial. .
Jurisdiction___________________________________________Orders in, remitting, mitigating, or suspending sentence Copie’s oL
‘Corrective action on_________________________________ Filing______________________________________________ Numbering \-____ __________________ ______ _________ Preparation oL____ _____ __ ______ ___ _____ ___ ___
Transmittal of-To reviewing authority ,. _
To officer exercising general copri-martial jurisdiction_
To The Adjutant GeneraL _
Reference for triaL _

Suspension of sentence: Power, in general, who may exercise-At time of approval of sentence_______________________ A;fter promulgation of sentence________________________ Restoration to duty ,_ ___
52,55,61 44, 47,51
__ 59
142c, 146 136, 140 64, 141a
54, 133
137 129 141a
139 141a
133 64
54
64, 130 54, 124 141a 133 141a 133 , 33
37
131 126 142b 135 142d
136
Vacation oL 142a, 146
135, 140 Training films, as substitute for reading Articles of WaL _________ 6b 6 Trial judge advocate (see also Court-martial records; Trial pro­cedure) . ____ Ch. 10
56
Arranging for time and place of triaL______________________ Assistant trial judge advocates-Detail oL , Duties oL Disclosure of grounds of challenge by__ Duties before triaL ______________________________________ Duties during triaL ~ ______________ _______ ___ Duties respecting record of triaL __________________________ Preparation of case for triaL ______________________________ Reports by___ ______________________________ __ :Forms for _______ ______ ____ ______ __ __________ _____ __ Serving charges upon accused by__________________________ Trial proc.edllla (see. also· Rvidence.;.,Findings;.Sentences.;.:Summary court officers; Punishments) _ Adjournment ‘ _ Argurnents _ Calling and qualifying of witnesses _ Challenges, procedure and voting on _ Clemency .————————_ Examination and cross-examination of witnesses _ Introduction of evidence ‘ . _ Objections _
(t~
Opening statements _
Order of testimony • _ Pleas _ 69 64
54b, 65,
46, 56 65b, 88b
56, 82 84b
77 66
57 70
64 71 65 67
58 71a, 72
65 15, 17
11, 13 66b
57
Ch.13 76 116 111 90 85 88b 82 84 77 116 111 88d,e 83 88,98e 82, 97 88g 83 87 81 88c 83 86 80
Trials:Conunon __
~
Joint .-_
Value: Allegation of inspellification ~ _ Proof oL ~ __”_” _
Warrant officers: Forfeiture of pay, not authorized under AWI0L·_~_.:_~ _ Jurisdiction of special court-martial over _ Not “offi.cers”. ·_.~ ~.~ _.~~._,_.~”_ ~’. ‘” _~ _” _
Witnesses: Accused, character oC _ Attendance of, at investigation _ Attendance of, at triaL _ Character, proof of _
Data as to, shown on charge sheet _ Examination and cross-examination of _ Impeachment of _
Questions as to identity of accused _ Women’s Army Corps, detail of on courts-martiaL _ Wrongful taking of property:
Distinguished from larceny and embezzlement ” Lesser included offense of larceny “~” ~ _ Specifications alleging ~ ~ ~_~~ _
Paragraph 91b 91a
25b
100

14a 58a 54a
99d
43,44a
68
99c
26f

88

99
88b
54e

24a
106

App. 7

Page
85
85

24
100

10
48
46

99

37,38
61
99
27
82
98
82
46

21
105
243

U. S. GOVERNMENT PRINTING OFFICE: 1945
be produced in court, and introduced into evidence, unless there is a satisfactory showing that it cannot be produced.
c.
Writing must be authenticated. No doooment can be received in evidence until the party offering it has established its genuineness, i. e., that it is what it purports to be, by testimony of one or more witnesses. If, for example, the prosecution seeks to introduce into evidence a letter written by the accused, it must do more than merely bring the letter into court and offer it into evidence. There must be some proof that the piece of paper in question was written by the accused. The prosecution should have the person who received the letter testify that he received it and identify it. Then the signature should be shown to be that of the accused by the testimony of that witness or other witnesses. The genuineness of the letter is thus established and the letter may be received in evidence. The fact that the writing is an official·document, such as a judgment of a court or a company morning report, does not dispense with the necessity of its authentication. If a company morning report, for example, is offered in evidence, it must be authenticated by proof that it is in fact the morning report of the particular unit. This may be shown by testi­mony of the company commander, the first sergeant, or anyone else who knows that fact of his own knowledge. The exception which permits the introduction of authenticated copies of such documents is discussed in d below.

d.
Exceptions in the case of official records. An important exception to the two general rules stated above, i. e., that the original writing must be produced and that its genuineness must be proved by witnesses, exists in the case of public records required to be preserved on file in a public office, including records in the War Department and in any command or unit in the Army. In the case of such records, a copy which has been duly authenticated by the .legal custodian of the original may be admitted in evidence in place of the original without first proving that the original has been lost or destroyed, or is otherwise unavailable. This exception is made necessary by the inconvenience to the public business and the impairment of the record system of the War Department and Army units that would result if the original records were removed from their files. A common illustration of the use of this exception is in the case of company morning reports. A morning report may, of course, be proved by producing the original and having a witness testify in court as to its genuineness, as stated in c above. But since it is in offiiCia’! writing, an extract copy duly authenticated by its legal custodian may be introduced into evidence without production of either the original report or a witness to authenticate it. There are three “legal custodians” of the morning report, anyone of whom may prepare an extract copy. They are the company or other unit commander preparing the report, The Adjutant .General, and the unit personnel officer, all of whom receive duplicate originals of the morning report (AR 345-400, 3 Jan

1945) and are charged with their custody. As only three legal custodians exist, it follows that no one else is empowered to authenticate an extract of the morning report. For example, neither the regimental commander, the regimental adjutant, nor any company officer other than its com­mander may exercise this function, and an ~xtract purportedly authenti­cated by any of them would ·be excluded on objection that it was not properly authenticated. Though a failure to object to its introduction on the part of the defense would waive a proper authentication, a trial judge advocate should never anticipate a failure to object on prdper grounds, and should make certain that the extract is properly authen­ticated before it is offered into evidence. In the ordinary case involving absence without leave the company commander will prepare and authen­ticate an extract from his morning report containing pertinent entries that concern the accused on WD AGO Form 44. This will be attached to the charges and other allied papers at the time they are forwarded and will be introduced into evidence at the trial by the prosecution. ‘ The advantages of using a duly authenticated copy in lieu of the original are manifest. Aside from saving the time consumed by a witness in attending a trial, it is often impracticable or even impossible to produce
both the original morning report and a witness to authenticate it. If,
for example, a soldier deserts his organization at a port of embarkation
and is not returned to military control until after it has departed, neither
the original company record nor anyone who could identify it as such
would remain. If, however, the company commander had properly
prepared and authenticated an extract copy of this report and attached
it to the charges or delivered it to the port authorities, this difficulty
would not arise. For a specimen form of a duly authenticated extract
copy of a morning report, see appendix 2, p. 214, infra.

e. Mechanics of introducing documentary evidence. In the usual case requiring documentary proof, where the original writing is to be intro­duced, a witness who can testify as to its genuineness will be called. The document should be marked for identification by the reporter, or, if none; by the trial judge advocate, after which the document will be referred to by the number given, e. g., “Prosecution’s Exhibit 1 for Identification.” It will be shown to opposing counsel and then to the witness who will be asked to identify it as to what it purports to be. If opposing counsel desires to cross-examine the witness on the question of admissibility before the document is received in evidence, such a request should be granted. The document will then be offered in evidence, and if admitted will be shown or read to the court. It is of utmost importance that the document actually be received in evidence, and the mere marking of it for identification does not serve this purpose. If a duly authenticated extract copy of a morning report or other official record is offered in evidence, no witness need be called. The document is merely marked for identification, shown to opposing counsel, and offered in evidence.

POW report

POW report

COVER PAGE
POW

THE FIGHT CONTINUES
AFTER THE BATTLE

The Report of
the Secretary of Defense’s Advisory Committee
on Prisoners of War

AUGUST 1955
PRQt#ERTYOF U.S. AAMY THEJUDGEADVOCATEGENERAL’S SCHOOL
UBRARY
BLANK PAGE

CONTENTS
Letter of Transmittal
I. Background
II. A Brief Look at History
III. The American Fighting Man and’ Korea
IV.
A Code of Conduct for the Future

V.
Korean Summary

VI.     The Road Ahead for America and the Armed Forces Addenda
THE DEFENSE ADVISORY COMMITTEE ON
PRISONERS OF WAR

MEMBERS
Mr. Carter L. Burgess, Assistant Secretary of Defense (Man­
power and Personnel)-Chairman. General John E. Hull, USA (Ret)-Vice Chairman. Dr. Frank B. Berry, Assistant Secretary of Defense (Health
and Medical). Mr. Hugh M. Milton, II, Assistant Secretary of the Army (Manpower and Reserve Forces). Mr. Albert Pratt, Assistant Secretary of the Navy (Personnel and Reserve Forces). Mr. David S. Smith, Assistant Secretary of the Air Force (Manpower and Personnel).
Lt. General Frank W. Milburn, USA (Retired).
Vice Admiral C. A. Lockwood, USN (Retired).
Lt. General Idwal H. Edwards, USAF (Retired).
Major General Merritt A. Edson, USMO (Retired).
.*
** ****
Mr. Stephen S. Jackson-Oommittee Oounsel.
Mr. Theodore Roscoe–8pecial Advisor.
Mr. Edward Wetter-Office of the Assistant Secretary of Defense (Research and Development).
STAFF
Colonel Horace E. Townsend, USA-8taff Director.
Colonel John C. Steele, USA-Deputy Staff Director.
Lt. Colonel Robert B. Rigg, USA-Member.
Commander Fred W. Frank, Jr., USN-Member.
Lt. Colonel Robert E. Work, USAF-Member.
Lt. Colonel F. B. Nihart, USMO-Member.
Major Donald B. Churchman, USA-Administration.
jv
OFFICE OF THE SECRETARY OF DEFENSE
WASHINGTON 25, D. C.
July 29, 1955
Defense Advisory Committee on Prisoners of War
Dear Mr. Secretary:
Your Defense Advisory Committee on Prisoners of War has
been in constant session for the past two months and is pleased
to submit this report of its deliberations and findings.
We are certain that many persons have expected this Com­
mittee to recommend courses of action which would be as
revolutionar.vas the speed and techniques of the latest guided
missile or jet aircraft.
However, our task deals with human beings and the Nation. We can find no basis for making recommendations other than on the principles and foundations which have made America free and strong and on the qualities which we associate with men of integrity and character. It is in this common belief that we have determined on courses of proposed action which we are convinced are best for the United States and for its position among free nations.
The Code of Conduct we recommend sets a high standard and a reasonable course for members of the Armed Forces of the future. The conscience and heart of all America are needed in the support of this Code, and the best of training that can be provided in our homes, by our schools and churches and by the Armed Forces will be required for all who undertake to live by this Code.
America no longer can afford to think in terms of a limited number of. our fighting men becoming prisoners of war and in the hands of an enemy in some distant land. Modern warfare has brought the challenge to the doorstep of every citizen, and so the Code we propose may well be a Code for all Americans if the problem of survival should ever come to our own main streets.
And then too the United States must constantly be aware of her high position of world leadership, and the Code we propose must consider the standard of the Ten Commandments and of our Constitution, as well as our pledge to the United Nations.
y
No Code should overlook the watermarks of America’s
greatness or bow to the easier courses which might entrap
more easily our men as alleged war criminals and weaken
their fiber for the many ordeals they may face. We must
bear in mind the past and future significance of the reserva­
tion made by Soviet Russia and other Communist nations to
Article 85 of the Geneva Conventions of 1949 on prisoners
of war.
Past history, the story of Korea and the crises which faced
our prisoners of war in that conflict from capture through
Operation Big Switch and after, were all carefully considered
and are presented in our report. The prisoner of war situa­
tion resulting from the Korean War has received a great deal
of adverse publicity. As is stated in our account, much of
that adverse publicity was due to lack of information and
consequent misconceptions in regard to the problem.
A few statistics may prove reassuring to anyone who thinks
the Armed Forces were undermined by Communist propa­
ganda in Korea.
A total of about 1,600,000 Americans served in the Korean
War. Of the 4,428 Americans who survived Communist im­
prisonment, only a maximum of 192 were found chargeable
with serious offenses against comrades or the United States.
Or put it another way. Only 1 out of 23 American POWs was
suspected of serious misconduct.
The contrast with civilian figures tells an interesting story. According to the latest F. B. 1. statistics, 1 in 15 persons in the United States has been arrested and fingerprinted for the commission, or the alleged commission, of criminal acts.
‘When one realizes that the Armed Forces come from a cross­section of the national population, the record seems fine indeed. It seems better than that when one weighs in the balance the tremendous pressures the American POWs were under. Weighed in that balance, they cannot be found wanting.
We examined the publicly alleged divergent action taken by the Services toward prisoners repatriated from Korea. The disposition of all cases was governed by the facts and circum­stances surrounding each case, and was as consistent, equitable and uniform as could be achieved by any two boards or courts. As legal steps, including appeals, are completed and in light of t.he uniqueness of the Korean War and the particular conditions surrounding American prisoners of war, the appropriate Service Secretaries should make thorough reviews of all punishments awarded. This continuing review should make certain that any excessive sentences, if found to exist, are carefully con­sidered and mitigated. This review should also take into account a comparison with sentences meted out to other prison­ers for similar offenses.
In concluding, the Committee unanimously agreed that Americans require a unified and purposeful standard of con­duct for our prisoners of war backed up by a :first class training program. This position is also wholeheartedly supported by the concensus of opinion of all those who consulted with the Committee. From no one did we receive stronger recommenda­tions on this point than from the former American prisoners of war in Korea-officers and enlisted men.
In taking this position and recommending this Code, it was pointed out to the Committee, and the Committee agrees, that in return America must always stand behind every American upon whom befalls prisoner of war status and spare no reason­able effort in obtaining their earliest possible release back to our side.
The Honorable Charles E. Wilson The Secretary of Defense
BLANK PAGE
I
BACKGROUND

The Fortunes of War
Fighting men declare it is neither dishonorable nor heroic to .
be taken prisoner. In the sense that the victim does not covet
it, but finds himself unable to avoid it, capture is an accident.
Often, like a motor crash, it comes as complete surprise. Often,
too, it is accompanied by injury. Nearly always the upshot is
painful and in the end it may prove fatal. And, as is the case
with many accidents, it is “bad luck.”
Fighting men speak of “the fortunes of war.” In combat,
luck cannot smile on all participants. Some are bound to
lose. The man taken captive is one of the uniucky-a Soldier
of Misfortune. That can be one definition for war-prisoner.
But the prisoner is always a soldier, adversity despite. For­
tune can change. In the U. S. Submarine Service there is the
maxim: “Luck is where you find it.” The POW must keep on
searching. It may come by way of chance for rescue or chance
for escape. Opportunity or luck may favor him through pris­
oner exchange. They also serve who only stand and wait. The
Lord helps those who hustle in the meantime.
These are the views of fighting men. And of men who have been prisoners of war-those who have “had it.” Their con­victions, derived from experience, serve to dispel a popular fallacy-the misconception that a prisoner of war is, perforce, a hero. Conversely, they do not chalk his capture down to in­ferior performance. Everything depends on the individual and the circumstances involved.

Public Interests and Misconceptions
Clearly one should not generalize about POWs, lump them all into a single slot, or jump from “some to all” conclusions. Public opinion tends to settle for generalities because they are convenient. The “single slot” is easy to handle. The some­equals-all deduction, quickly arrived at, does not entail bother­some thinking. But these handy and quick devices serve to distort factuality. Misconceptions result. If, in addition, there has been misinformation or lack of information, public opinion may go far askew.
In the case of American POWs-in particular, those taken prisoner in Korea-misconceptions are abundant. For the most part they are based on erroneous generalities and some­equals-all deductions. Too, for reasons which will become
353176—55-2
clear, the public has heretofore not been fully informed on the
details necessary for balanced judgment.
Definitions were and are unclear or lacking. To begin with,
just what is a prisoner of war? The man and his situation may
. be readily visualized. But what is his military status? What
conduct is required of the prisoner in regard to enemy interroga­

tion? What rilles and regillations must he follow during con­
finement? What are his rights and privileges as codified by
various international conventions and protocols?
What treatment may the prisoner of war expect from the
“detaining power,” his captors? What conditions are imposed
by the so-called “laws of war?” Can a POW be tried as a
war criminal? What is a war criminal?
Did the American POW in Korea face some novel and
alarming menace from his Communist captors? Were nearly
all prisoners tortured or “brain washed1” Did many POWs
in Korea adopt Marxist doctrine? Were there hundreds of
subverted turncoats, traitors, voluntary collaborators? In
punishing such malefactors was there divergence in the military
Services-some lenient; others “Spartan?”
On many of these and similar questions the citizen on the
home front has remained largely uninformed. Too often the
POW, himself, has not known the answers.
Appointment of the Defense Advisory Committee Every war has its disturbing aftermath. There is always another side to the Victory coin. If the victory is not clearly imprinted and the war has ended in what seems a stalemate, the coin becomes suspect. In any event, there is usually a post-war inventory. If losses have been heavy and objectives obscure, the coin may seem debased. The inventory after the War of 1812 was unpleasant. There were some rude reactions after the Spanish-American War. In a great war, some battles are inevitably lost. Military leaders study these battles, determined to uncover mistakes, if any were made, so that errors in kind may be avoided in the future. Correction of possible errors and the need for a unified plan for the future led the Department ofDefense to examine closely the prisoner-of-war situation in Korea. The Defense Advisory Committee on Prisoners of War was organized to study the problem.
A BRIEF LOOK AT HISTORY
From the Beginning of Time
For a full understanding of today’s prisoner of war problem,
background knowledge of the past is essential. History has
established precedents which provide the knowledge necessary
to shed light on preparation for the future.
Primitive man and his barbarian descendant annihilated or
enslaved all foemen who were captured. In time it occurred to
the conqueror to hold a captured headman or leader as hostage.
Such a victim was Lot. According to Scripture he was freed
by the forces of Abraham-perhaps the earliest prisoner-rescue
on record.
But the vanquished of the ancient world usually faced exter­mination. One finds in Samuel: “thus saith the Lord of Hosts … go and smite Amalek and utterly destroy all they have, and spare them not.” Saul was considered disobedient because he took a few Amalekite prisoners. Six centuries later Hemocritus of Syracuse was exiled for refusing to slaughter all Athenian’ captives. But it seemed mankind had a conscience. In respect to humane treatment of captives, it found voice in India in the ancient Code of Manu (about 200 B. C.). The Hindu warrior was enjoined to do no injury to the defenseless or to the subdued enemy.
Less humane, the Romans sported with their war-prisoners, often using them for target practice or gladiatorial shows. Captives were tortured for public amusement. Enslaved war­riors rowed Caesar’s naval galleys to North Africa and Britain, and were killed when they could no longer pull an oar. “Slay, and slay on!” Germanicus ordered his Rhineland invaders. “Do not take prisoners! We will have no peace until all are destroyed.” Thumbs sometimes went up for the valiant for­eign gladiator or the stalwart warrior who begged no quarter. But mercy to the conquered foe was usually a whim.

Medieval Concepts
Chivalry developed in the Western World with the rise of Christian civilization, the concept of “Do Unto Others.” In the Dark Ages, soldiering remained savage, but the codes of knighthood served to temper the warrior’s steel. The true
knight refused to slay for slaughter’s sake. Conquering, he
could be merciful to a gallant opponent. His prisoner was not
a plaything for sadistic entertainment.
If the chivalric code was sometimes more honored in breach
than in observance, the ideal-the Golden Rule-was there.
It was threatened by intolerant ideologies and the fanaticism
which fosters atrocities. Cruel pogroms and religious wars
bloodied Medieval Europe. The Islamic conquests were
savagery untrammeled. Woe to the Unbeliever captured by
the stepsons of Abu Bekrl But even as it clashed with the
sword, the scimitar acquired tempering. Possessed of his own
code, the Moslem warrior could appreciate gallantry.
The knight was called upon to assume the obligations of noblesse oblige. Warrior or liegeman, facing battle, was pledged to remain true to his king or cause, even if captured. Under any circumstance treason would merit retributive punishment. Treachery, the disclosure of a trust or the deliverance of a friend to the enemy, was perfidious-the mark of Judas the Betrayer.
Thus rules for the fighting man in combat or in captivity were linked to knightly concepts of duty, honor, loyalty to friend, and gallantry to foe.
Some time during the Crusades a rule evolved in regard to prisoner interrogation. The captive knight was permitted to divulge his name and rank-admissions necessitated by the game of ransom. A necessity for prisoner identification, the rule holds today, as imposed by the modern Geneva Conven­tions:
“Every prisoner of war, when questioned on the subject, is bound to give only his name, rank, date of birth, and army, regimental, personal or serial number.”
In Europe during the 17th Century the concept emerged that prisoners of war were in custody of the capturing sovereign or state. No rules for their treatment had yet been formulated, but they were protected from servitude and personal revenge. Later, during the 18th Century, captivity was considered a means of preventing return to friendly forces. This was a step forward. Military prisoners were no longer considered guilty of crimes against the state.
The American Revolution
To discourage desertions during the Revolution, the United States established the death penalty for those prisoners who, after capture, took up arms in the service of the enemy. Am­nesty was granted to deserters but not those who deserted to the enemy. Duress or coercion was recognized as mitigating only in event of threatened immediate death. This was the first American definition of required prisoner conduct. In the Treaty of 1785 no standard of conduct was prescribed but conditions of confinement, care and parole were defined.
The American Civil War
During the Oivil War there was some regression in the treat­
ment afforded prisoners. About 3,170 Federal prisoners joined
the Southern forces and about 5,452 prisoners of the Southern
armies joined the Federal army.
Prisoner conduct after capture was mentioned in War Depart­
ment General Order No. 207, 3 July 1863. Among other things,
the order provided that it was the duty of a prisoner of war to
escape. This order apparently was intended to curb wide­
spread practices of surrender and subsequent parole to escape
further combatant service. Prosecution for misconduct was
based on three criteria:
-misconduct where there was no duress or coercion.
-active participation in combat against Federal forces.
-failure to return voluntarily. ‘
Nine years after the Oivil War a declaration establishing the rights of prisoners was drafted by the Oongress of Brussels (1874). It was signed by fifteen nations, none of which ratified the agreement.
World Wars I and II
In 1907 the Hague Regulations established rules pertaining to captivity in war. These regulations led to the Geneva Oon­ventions of 1929 and 1949. The United States signed all three, and it recently ratified the Geneva Oonventions of 1949. The Oonventions set forth in detail the rights and protections which should be afforded prisoners, but they do not specifically pre­scribe the conduct which a nation may require of its personnel who may become prisoners. This is rightfully left for prescrip­tion by sovereign powers.
There are, however, several provisions of the Oonventions which do require specific conduct. Prisoners are subject to the laws, regulations and orders in force within the armed forces of the detaining power. They may be punished for infractions of rules. They must divulge name, rank, service number and date of birth.

A Code of Conduct
Although all the Services had regulations, the U. S. Armed Forces have never had a clearly defined code of conduct appli­cable to American prisoners after capture. There are piece­meal legal restrictions and regulations but no comprehensive codification. However, despite this lack of a code, American troops have demonstrated through all wars that they do not surrender easily, they have never surrendered in large bodies and they have in general performed admirably in their country’s cause as prisoners of war.
THE AMERICAN FIGHTING MAN AND KOREA
THE KOREAN BATILE
Our cause was simple and just, but our objectives in the Korean War were frequently confused in the public mind.
The Korean War had three aspects. There was the Civil War aspect-North Koreans fighting South Koreans for con­trol of a divided country. There-was the collective aspect-the first United Nations’ attempt to stop a treaty breaking aggres­sor. And there was the Cold War aspect-the Western powers blocking the expansion of Communist imperialism.
The causes of the war, United Nations’ objectives and the need for American intervention were not clearly delineated in the public mind. This lack of understanding prevailed among citizens and American fighting men.
The Communists attempted to exploit to the fullest this condition in both international propaga.nda and in dealing with our prisoners of war.
Armed with Soviet weapons, North Korean Communist forces invaded South Korea on June 25, 1950. Six days later a battalion of the U. S. 24th Infantry Division was rushed to Korea from Japan. The division was soon inaction against the enemy on the outskirts of Seoul.
The United States began a piecemeal build-up of the fighting forces in Korea. The first units to reach Korea were not well prepared for combat. Thousands of reserves were -flown to Korea. Many were veterans of World War II, but five years at a factory or office job can slow up a man’s trigger finger. However, by November 1950, the North Koreans had been completely beaten, their capital was in Allied hands, and their remnant forces were scattered and disorganized. The victory was almost at its climax when the Chinese Red avalanche crashed over the Yalu.
That was on October 25th. A month later the Chinese opened a massive counter-offensive hurling our forces into retreat. Early in December, American and Allied Forces were trapped at the Chang-Jin Reservoir. By fierce fighting they broke the trap and fought their way to Hungnam where they were evacuated. There ensued a winter of back-to-wall battling in subzero cold. It was during this gruelling period that most of the American POWs were captured.
Imprisonment, North Korea
During the Korean War a total of 7,190 Americans were
captured by the enemy. Of these, 6,656 were Army troops;
263 were Air Force men; 231 were Marines; 40 were Navy men.
The Army bore the heaviest burden of prisoner losses.
The captives were marched off to various prison camps in the
North Korean interior. Altogether there were 20 of these
camps.

UDeath Marches”
The first ordeal the prisoner had to suffer-and often the
worst-was the march to one of these camps. The North
Koreans frequently tied a prisoner’s hands behind his back or
bound his arms with wire. Wounded prisoners were jammed
into trucks that jolted, dripping blood, along broken roads.
Many of the wounded received no medical attention until they
reached the camp. Some were not attended to until days
thereafter.
The marching prisoners were liable to be beaten or kicked to their feet if they fell. A number of the North Korean officers were bullwhip barbarians, products of a semi-primitive en­vironment. Probably they had never heard of the Geneva Conventions or any other code of war. The worst of this breed were responsible for the murder of men who staggered out of line or collapsed at roadside. They were particularly brutal to South Korean captives. Evidence indicates that many ROK prisoners were forced to dig their own graves before they were shot (an old Oriental custom applied to the execution of criminals). Some Americans, with hands tied behind_back, were shot by the enemy.
So the journeys to the prison camps were “death marches.” Especially in the winter of 1950-1951 when the trails were knee-deep in snow and polar winds flogged the toiling column. On one of these marches, 700 men were headed north. Before the camp was reached, 500 men had perished.

Facilities, Food, and Care Were Poor
The camps were what might be expected in a remote corner of Asia. Prisoner rations were scanty-a basic diet of rice occasionally leavened with some foul kind of soup. The Red
Chinese and Korean authorities pointed out that this larder
conformed with the rules of the Geneva Conventions-the
prisoner received the same food as the soldiery holding him
captive. Of course, the Chinese were inured to a rice diet.
The average American could not stomach such fare. Sickness
broke out in the camps. Many of the men suffered long sieges
of dysentery.
The men suffered much from cold in winter and heat in
summer. Water was often scarce; bathing became difficult.
Barracks were foul and unsanitary.
In the best of the camps the men behind the barbed wire
were sometimes given tobacco, a few morsels of candy, occa­
sional mail. As will be noted, such items were usually offered
as rewards for “cooperative conduct.”
A few Red Cross packages got through. However, the
enemy consistently refused to permit the International Red
Cross to inspect prisoner of war camps. There was good reason.

Camps Varied from Bad to Worse
In the worst of the camps, the prisoners existed by the skin of their teeth and raw courage. Men ‘in the “bad” camps were known to lose 50 pounds weight in a matter of weeks.
The “bad” camps included theso-called “Bean Camp” near Suan, a camp known as “Death Valley” near PUkchin, another camp called “The Valley,” apparently in the vicinity of Kanggye. Among the worst camps were the “Interrogation Center” near Pukchin and a neighboring disciplinary center called “The Caves.” This last was literally composed of caverns in which the men were confined. Here they were forced to sleep without blankets. Their food was thrown at them. There were no latrine facilities. In “The Caves” the prisoners were reduced to a degree of misery and degradation almost unbelievable. Those sent to “The Caves” were pris­oners accused of insubordination, breaking camp rules, attempt­ing to escape, or committing some other crime (so-called). The testimony of survivors suggests that the “crime” was seldom fitted by the punishment. Some men who refused to talk to military interrogaters were threatened with, or sent to “The Caves.”

“Pak’s” Was No Palace
Possibly the worst camp endured by American POWs in Korea was the one known as “Pak’s Palace.” This was a highly
353176-55-3
specialized interrogation center located near the city of Pyong­
yang. The place was a brickyard flanked by Korean houses.
It was a North Korean establishment dominated by a chief
interrogator, Colonel Pak. Pak was ably assisted by a hench­
man who came to be called “Dirty Pictures” Wong by the
POWs.
The camp was under the administration of a Colonel Lee, and there were several other interrogators on the team. But Pak and Wong were symbolic of the institution. Pak was a sadist, an animal who should have been in a cage. The team employed the usual questionnaires, the carrot-and-prod tech­niques to induce answers. Failing to induce them, they con­trivedto compel them. The “Palace” wanted military infor­mation. Coercion was used as the ultimate resort. And for Pak, coercion began ,soon after a prisoner refused to talk. Then Pak would use violence. Abusive language would be followed by threats, kicks, cigarette burns, and promises of further torture.
Several U. S. Army and Navy officers were questioned at “Pak’s Palace!’ A few Army enlisted men went through this brickyard mill. The great majority of POWs held there were Air Force officers. They took a bad beating from Colonel Pak.
But the prisoners found ways to get around the beating. One way was to convince the captors that you were dumb, stupid, the low man in your class. Undergoing interrogation, one officer convinced his inquisitors that he was the stupidest officer in the service. He was awarded a contemptuous slap, and that was about all.
To the surprise of some prisoners at the “Palace,” the inter­rogation team would sometimes open up with a wild political harangue. Then came the word that the enemy had established a system of indoctrination courses. The prisoner might start the hard way-and be punished by restricted rations and other privations. If he began to show the “proper spirit”-to co­operate with his captors-he was lectured and handed Com­munist literature. A docile prisoner who read the literature and listened politely to the lectures, was graduated to a better class. Finally he might be sent to “Peaceful Valley!’ In this lenient camp the food was relatively good. Prisoners might even have tobacco. And here they were given all sorts of Marxian propaganda. Th~ graduates from “Peaceful Valley” and others who accepted Communist schooling were called
“Progressives.” Prisoners who refused to go along with the program often remained in tougher circumstances. They were considered “Reactionaries.” But the enemy followed no rigid system. Rather, his treat­ment of prisoners was capricious. Sometimes he showed contempt for the man who readily submitted to bullying. The prisoner who stood up to the bluster, threats and blows of an interrogator might be dismissed with a shrug and sent to quarters as mild as any-if any prison barracks in North Korea could be described as mild. All in all, the docile prisoner did not gain much by his The prisoner who
docility-:-and sometimes he gained nothing.
defied Pak and his breed might take a beating, but again he might not. The ordeal was never easy. But things weren’t easy either for the combat troops battling out there in the trenches.
Progressives and Reactionaries
The POW “political” schools in North Korea were, of course, patterned after the Soviet Russian design. They were part of a
mass program to spread Marxian ideology and gain converts for International Communism. The Progressives were called upon
to deliver lectures, write pamphlets, and make propaganda broadcasts. Progressive leaders were sent among Reactionary groups to harangue the men. They wrote speeches condemning Capitalism and “American aggression in Korea.” They organ­ized a group known as “Peace Fighters.” Fortunately, only. a few officers were Progressives. How­ever, their influence was unfortunately strong on the enlisted men. If the Captain can do it, why can’t I? If the Colonel signs a peace petition and orders the rest of us to do it, we have to follow orders, don’t we? Altogether the enlisted men were on a spot. That many of them refused to jom the Progressives (and rejected a promise, sometimes unfulfilled, of better food, minor luxuries, and mail call) says something for the spirit of privates and non-corns. The men who gave the Progressives an argu­ment–the active Reactionaries-were a rugged group. Breakdown of leadership was exactly what the enemy de­sired. Officers were usually segregated. Then as soon as a natural leader stepped forward in a camp, he was removed.And if
Progressives were usually placed in leadership position.
they weren’t obeyed by the other paws, punishments were in store for the “insubordinate prisoners.”
11
By design and because some officers refused to assume leadership responsibility, organization in some of the POW camps deteriorated to an every-man-for-himself situation. Some of the camps became indescribably filthy. The men scufHed for their food. Hoarders grabbed all the tobacco. Morale decayed to the vanishing point. Each man mistrusted the next. Bullies persecuted the weak and sick. Filth bred disease and contagion swept the camp. So men died for lack of leadership and discipline.
Ordeal by Indoctrination
When plunged into a Communist indoctrination mill, the average American POW was under a serious handicap. Enemy political officers forced him to read Marxian literature. He was compelled to participate in debates. He had to tell what he knew about American politics and American history. And many times the Chinese or Korean instructors knew more about these subjects than he did. This brainstorming caught many American prisoners off guard. To most of themI it came as a complete surprise and they were unprepared. Lec­tures-study groups-discussion groups-a blizzard of prop­aganda and hurricanes of violent oratory were all a part of the enemy technique.
A large number of American paws did not know what the Communist program was all about. Some were confused by it. Self-seekers accepted it as an easy out. A few may have believed the business. They signed peace petitions and peddled Communist literature. It was not an inspiring spectacle. It set loyal groups against cooperative groups and broke up camp organization and discipline. It made fools of some men and tools of others. And it provided the enemy with stooges for propaganda shows.
Ignorance lay behind much of this trouble. A great many servicemen were ‘teen-agers. At home they had thought of politics as dry editorials or uninteresting speeches, dull as ditchwater. They were unprepared to give the commissars an argument.
Some of the POWs-among them men who became defec­tors-had heard of Communism only as a name. Many had never before heard of Karl Marx. And here was Communism held up as the salvation of the world and Marx as mankind’s benefactor.
The Committee heard evidence which revealed that many of the POWs knew too little about the United States and its
ideals and traditions. So the Chinese indoctrinators had the
advantage.
The uninformed POWs were up against it. They couldn’t
answer arguments in favor of Communism with arguments in
favor of Americanism, because they knew very little about their
America. The Committee heard a number of ex-POWs who
stated that a knowledge of Communism would have enabled
them to expose its fallacies to their camp-mates. The Red
indoctrinators tried hard to win the support of factory workers.
But as one of them put it, “We’d heard all that guff before.
Back home. We knew their line.” Knowledge was a defense
weapon.
While it might be argued that few of the men became sincere
converts to Communism-indeed, the percentage seems to
have been infinitesimal-the inability of many to speak up
for Democracy distressed loyal POWs. Active collaborators
aside, there were other passive prisoners that “went along.”
They lacked sufficient patriotism because of their limited knowl­
edge of American Democracy.
It seemed that these POWs in question had lost their battle
before they entered the Service. Good citizens-loyal Ameri­
cans-the responsibility for their building lies with the home,
the school, the church, the community. When men enter the
Armed Forces, the Military Services must carryon with this
development.
The Committee, stressing the need for spiritual and educa­tional bulwarks against enemy political indoctrination, recom­mends that the Assistant Secretary of Defense (Manpower and Personnel) be directed to initiate exploratory conferences with the Department of Health, Education, and Welfare, and other agencies and institutions on pre-service training.
Brainwashing and Indoctrination
The Committee made a thorough investigation of the “brain­washing” question. In some cases this time consuming and coercive technique was used to obtain confessions. In these cases American prisoners of war were subjected to mental and physical torture, psychiatric pressures or “Pavlov Dogs” treat­ment.
Most of the prisoners, however, were not subjected to brain­washing, but were given a high-powered indoctrination for propaganda purposes.
In either case the members of our Armed Forces should be
given the best education and training possible in the future so
that they can resist and cope with these practices.
The Committee also learned that paws in Korea were not drugged. Other methods such as denial of food or sleep were equally effective and more practical.
Behind the Barbed-Wire Curtain
Perhaps the Red enemy worked harder on the Americans than he did on the other prisoners. An American who signed a propaganda leaflet, a peace petition, or a germ warfare con­fession, was a big feather in the enemy’s hat. Many Americans in Communist POW camps signed something or wrote some­thing. Out of 78 men under various forms of duress, 38 signed germ warfare confessions. Forty others did not. Both groups were under coercion. Why did some men break, and some refuse to bend?
Many servicemen exhibited pride in themselves and their units. This was particularly pronounced where they had be­longed to the same unit for years. They stood by one another like that “band of brothers” inspired by Nelson. If a soldier were sick, his fellow soldiers took care of him. They washed his clothes, bathed him, and pulled him through. They ex­hibited true fraternal spirit comradeship, military pride. These soldiers did not let each other down. Nor could the Korean Reds win much cooperation from them.
Interrogation went hand in glove with indoctrination. A prisoner was questioned for military information. He was also queried on his home life and educational background. The interrogator made him put it in writing-a biographical sketch. Seldom did the brief autobiography prove sufficient. The prisoner was usually compelled to write more, and in greater detail. If his literary efforts were painful, the discomfort was only a beginning. His autobiography was used against him. The slightest discrepancy, and he was accused of lying. He might discover that he had written a confession of some kind. And in any case, the information supplied the interrogators with a useful leverage for more pressure. The author’s mistake was in taking pen in hand.
Only a handful of the paws in Korea were able to maintain absolute silence under military interrogation. Nearly all of the
American prisoners went beyond the “absolute” name, rank,
number, date of birth restriction.
Reviewing the interrogation matter, the Defense Advisory
Committee felt that the steps taken up to now by the Armed
Forces had been decidedly inadequate.
The Committee recommends that the Department of Defense
devise a special training program to teach American service­
men the ways and means of resisting enemy interrogators.
What Can Be Done?
In a war for the minds of men, the enemy’s methods can be
successfully combatted by military training and civilian educa­
tion. In battle and in captivity the fighting American is no
better than his training and education. Military schooling can
teach him combat skills. Such know-how is a “must.”
The Committee recommends that the Military Services
initiate a coordinated training program including-
First, general training. This is motivational and informa­tional training to he conducted throughout the career of all servicemen during active and reserve duty. Second, specific training. This is designed for and applied to combat-ready troops. A code of conduct must apply uniformly to’ all Services, and training must be uniform among the Services to the great­est degree practicable.
In all Services training should be adapted to cover the needs of all ranks from the enlisted man to the commander. It must be realistic as well as idealistic. Above all, it must be presented with understanding, skill and devotion sufficient to implant a conviction in the heart, conscience, and mind of the service­man that full and loyal support of the code is to the best interests of his country, his comrades, and himself.
But skill must be reinforced by will-by moral character and by basic beliefs instilled in home and classroom long before a lad enters the Military Service. Pride in a country and respect for its principles-a sense of honor-a sense of responsibility­such basics should be established long before “basic training,” and further developed after he enters the Armed Forces.
The Committee recommends that the Services find an effective means of coordinating with -civilian educational institutions, churches and other patriotic organizations to provide better understanding of American ideals.
War has been defined as H a contest of wills.” A trained hand holds the weapon. But the will, the character, the spirit of the individual-these control the hand. More than ever, in the war for the minds of men moral character, will, spirit are important.
As a serviceman thinketh so is he.
IV
A CODE OF CONDUCT FOR THE FUTURE
The Services Voice Their Opinions
The leaders of the American Armed Forces-the Joint Chiefs of Staff-The Department of Defense Committees-the various planning and policy-making boards-reach decisions through discussion and debate based on facts. In striving to design a Code of Conduct for United States fighting men, the Defense Advisory Committee weighed opposing points of view in regard
to the “name, rank, serial number and date of birth” provision embodied in the Geneva Conventions. The traditional view is that the POW stockade is only an extension of the battlefield where the prisoners must be taught to carry on the struggle with the only weapons remaining­
faith and courage. The absolute restriction-name, rank, number, date of birth, and nothing more, has been called the “Spartan Code.” To some persons, such a restrictive code seemed unrealistic. Especially in the light of modern interrogation methods. Authorities on the subject of interrogation insisted that the iron-bound “nothing more” of the Spartan Code was impossible. They pointed out that Communist interrogators had bent such men of steel as Cardinal Mindszenty. Doctors and psychiatrists
generally conceded that “every man has a breaking point.” Many prisoners in World War II were forced beyond “name, rank and serial number.” And nearly every prisoner in Korea divulged something. Why, then, the dis~enters asked, should a man endure purgatory when his “breaking” was inevitable? This view was publicized in an article in a popular magazine. Itwas the author’s opinion that American servicemen should be told that “they may sign any document the Communists want them to, or appear on TV and deliver any script the Reds hand them.”Referring to the case of a Marine colonel, the author pointed to a fine officer who had been coerced into signing a germ war­fare confession. Why not let American captives sign anything at all? The United States could announce that all such con­fessions were obtained under duress, and therefore invalid.
353176-55-4 17
In addition to the “Spartan view” and the “let them talk view” there were numerous advocates of in-between measures­talk, but don’t say anything.
In Axis camps and in Korea many prisoners had stood up against interrogation. Many had refused to sign on any dotted line. The idea that an officer or enlisted man might stand up to a microphone and denounce his country, his President, or ihis faith, remained repellent. Moreover, the man who signed ./ a germ warfare or some other confession let himself in for a
\./ “war criminal” charge: Having obtained such a confession the unscrupulous enemy labeled him a war criminal and claimed that he was beyond the protecting Geneva Convention. The Committee believes that this practice is another strong reason for our prisoners of war adhering to a well defined code of conduct in any future conflict. Pro and Con. There was much to be said on both sides. And there was something to be said by experienced officers who felt that a man could be taught to hold his own in the battle of wits against enemy interrogators. Authorities pointed out that the Geneva Conventions did not impose “absolute silence” on the interrogated war-prisoner. There were clauses indicating that he might discuss his employment, his finances, or his state of health, or “conditions of captivity” if necessity demanded. In short, he did not have to remain mute. The Committee agreed that a line of resistance must be drawn somewhere and initially as far forward as possible.Dhe name, rank and service number provision of the Geneva Conventions is accepted as this line of resistance. However, in the face of experience, it is recognized that the POW may be subjected to an extreme of coercion beyond his ability to resist. If in his battle with the interrogator he is driven from his first line of resistance he must be trained for resistance in successive positions. And, to stand on the final line to the end-no disclosure of vital military information and above all no disloyalty in word or deed to his country, his service or his comrades. Throughout, the serviceman must be responsible for all of his actions. This in brief is the spirit and intent of the Code of Conduct which the Defense Advisory Committee recommends.
Prominent Civilians Stated Their Views The Committee discussed sociological and educational prob­lems with leading educators. It consulted with labor leaders. The religious problem was discussed with leaders of various
18
faiths. The Committee also sought and received the in­valuable views of the leaders of the nation’s veterans organiza­tions. All contributed worthwhile suggestions. All helped to select a code compatible with American precepts”of honor and justice.
The Recommended Code of Conduct (See Addenda 2) After long study and earnest deliberation, the Committee came to its decision. That decision is found in the Code of Conduct now proposed for all members of the Armed Forces. The Committee recommends that the proposed Code of Conduct be promulgated in the form of an Executive Order. The Code demands high standards. To ensure achievement of these, each member of the Armed Forces liable to capture must be provided with specific training designed to equip him better to cope with all enemy efforts against him. He will be fully instructed as to his behavior and obligations in combat and in the event of capture. No prisoner of war will be forgotten by the United States. The support and care of dependents of prisoners of war is pre­scribed by law. Every practical means will be employed to establish contact with, to support and to gain the release of all prisoners of war.
I
The United States serviceman, by his service is protecting his nation. Any shirking of this responsibility or any unwilling­ness to do his full part weakens this defense and invites disaster.
I am an American fighting man. I serve in the forces which guard my country and our way of life. I am prepared to give my life in their defense.
A member of the Armed Forces is always a fighting man. As such, it is his duty to oppose the enemies of the United States regardless of the circumstances in which he may find himself, whether in active participation in combat, or as a prisoner of war.
II
If individuals and commanders were permitted to surrender whenever a situation seems to be desperate it would become an open invitation to all weak of will or depressed in spirit.
I will never surrender of my own free will. If in command I will never surrender my men while they still have the means to resist.
As an individual, a member of the Armed Forces may never
voluntarily surrender himself. When isolated and he can no
longer infJ.ict casualties on the enemy, it is his duty to evade
capture and rejoin the nearest friendly forces.
The responsibility and authority of a commander never
extends to the surrender of his command to the enemy while it
has power to resist or evade. When isolated, cut off or sur­
rounded, a unit must continue to fight until relieved, or able to
rejoin friendly forces by breaking out or by evading the enemy.
III
The fight is everywhere. Even in the prison camp. When
the use of physical weapons is denied, the mental and moral
“will to resist” must be kept alive in every prisoner.
If I am captured I will continue to resist by all means avail­
able. I will make every effort to escape and aid others to
escape. I will accept neither parole nor special favors from
the enemy.
The duty of a member of the Armed Forces to continue resistance by all means at his disposal is not lessened by the misfortune of capture. Article 82 of the Geneva Conventions Relative to the Treatment of Prisoners of War of August 12, 1949, pertains, must be explained, and covered in the training programs to be carried out by the Services.
Article 82 provides as follows:
“A prisoner of war shall be subject to the laws, regulations
and orders in force in the armed forces of the Detaining
Power; the Detaining Power shall be justified in taking
judicial or disciplinary measures in respect ot any offence
committed by a prisoner of war against such laws, regulations
or orders. However, no proceedings or punishments contrary
to the provisions of this Chapter shall be allowed.
“If any law, regulation or order of the Detaining Power
shall declare acts committed by a prisoner of war to be
punishable, whereas the same acts would not be punishable
if committed by a member of the forces of the Detaining
Power, such acts shall entail disciplinary punishments only.”
He will escape if able to do so, and will assist others to escape. Parole agreements are promises given the captor by a prisoner of war upon his faith and honor, to fulfill stated conditions, such as not to bear arms or not to escape, in consideration of special privileges-usually release from captivity or lessened restraint. He will never sign or enter into a parole agreement.
IV

The most despicable act an American can commit is to give aid and comfort to the enemy by informing or otherwise harming fellow prisoners. Failure to assume responsibilities commensurate with rank is equally reprehensible.
If I become a prisoner of war, I will keep faith with my fellow prisoners. I will give no information or take part in any action which might be harmful to my comrades. If I am senior, I will take command. If not, I will obey the lawful orders of those appointed over me and will back them up in every way.
Informing, or any other action to the detriment of a fellow prisoner, is despicable and is expressly forbidden. Prisoners of war must avoid helping the enemy identify fellow prisoners who may have knowledge of particular value to the enemy, and may therefore be made to suffer coercive interrogation.
Strong leadership is essential to discipline. Without dis­cipline, camp organization, resistance and even survival may be impossible. Personal hygiene, camp sanitation, and care of sick and wounded are imperative. Officers and non-commis­sioned officers of the United States will continue to carry out their responsibilities and exercise their authority subsequent to capture. The senior line officer or non-commissioned officer within the prisoner of war camp or group of prisoners will assume command according to rank (or precedence) without regard to Service. This responsibility and accountability may not be evaded. Ifthe senior officer or non-commissioned officer is incapacitated or unable to act for any reason, command will be assumed by the next senior. If the foregoing organization cannot be effected, an organization of elected representatives, as provided for in Articles 79-81 GenevJt Convention Relative to Treatment of Prisoners of War, or a clandestine organiza­tion, or both, will be formed.
V
Every serVICeman possesses some important military in­formation of value to the enemy. By revealing it they may cause the death of comrades or disaster to their unit, or even the defeat of major forces of the nation.
When questioned, should I become a prisoner of war, I am
. bound to give only name, rank, service number, and date of birth. I will evade answering further questions to the utmost of my ability. I will make no oral or written statements dis­
loyal to my country and its allies or harmful to their cause.
When questioned, a prisoner of war is required by the Geneva Conventions and permitted by this Code to disclose his name, rank, service number, and date of birth. A prisoner of war may also communicate with the enemy regarding his individual health or welfare as a prisoner of war and, when appropriate, on routine matters of camp administration. Oral or written confessions true or false, questionnaires, personal history state­ments, propaganda recordings and broadcasts, appeals to other prisoners of war, signatures to peace or surrender appeals, self criticisms or any other oral or written communication on behalf of the enemy or critical or harmful to the United States, its allies, the Armed Forces or other prisoners are forbidden.
Itis a violation of the Geneva Conventions to place a prisoner of war under physical or mental torture or any other form of coercion to secure from him information of any kind. If, however, a prisoner is subjected to such treatment, he will endeavor to avoid by every means the disclosure of any in­formation, or the making of any statement or the performance of any action harmful to the interests of the United States or its allies or which will provide aid or comfort to the enemy.
Russia and the Communist Bloc nations have made a sig­nificant reservation to Article 85 of the Geneva Conventions of 1949. Under this reservation a prisoner of war who may be convicted of an alleged war crime under the laws of the captors, loses the protection afforded a prisoner of war by these Con­ventions. Therefore the signing of a confession or the making of a statement by a prisoner is likely to be used to convict him as a “war criminal” and thus, according to this Communist Bloc device, deny to him any protection under the terms of the Geneva Conventions, including repatriation until his sentence is served.
VI
An American is responsible and accountable for his actions. Prisoner of war status doesn’t change this nor does it change the obligation to remain faithful to the United States and to the principles for which it stands. Throughout his captivity, a prisoner should look to his God for strength to endure whatever may befall. He should remember that the United States of America will neither forget, nor forsake him, and that it will win the ultimate victory.
I will never forget that I am an American fighting man, responsible for my actions, and dedicated to the principles which made my country free. I will trust in my God and in the United States of America.
The provisions of the Uniform Code of Military Justice whenever appropriate continue to apply to members of the Armed Forces while they are prisoners of war. The conduct of prisoners is subject to examination as to the circumstances of capture and through the period of detention with due regard for the rights of the individual and consideration for the conditions of captivity.
A member of the Armed Forces who becomes a prisoner of war has a continuing obligation to remain loyal to his country, his Service and his unit. The life of a prisoner of war is hard. He must never give up hope. He must resist enemy indoctrination. Prisoners of war who stand firm and united against the enemy will aid one another in surviving this ordeal.
23
BLANK PAGE
V KOREAN SUMMARY
Misconduct by a Minority A total of 4,428 American fighting men were recovered from enemy prison camps in Korea. The prisoner exchanges began with Operation “Little Switch” in April 1953-significantly enough, the month after Stalin died and Malenkov assumed Soviet leadership. The Korean War was over. Some 600 Allied prisoners were returned in exchange for ten times that many Communist Chinese and North Koreans. During sub­sequent Operation “Big Switch” most of the American prisoners were recovered. At this time it was learned that 2,730 Ameri­
cans had died in Korean prison camps. This ghastly death­toll-38%-was the worst since the Revolutionary War. By joint action of the services, all of the prisoners recovered were screened by military intelligence agencies. Of the 565 whose conduct was questioned, 373 were cleared or dropped after investigation. Of the remaining 192 suspects, 68 were
separated from the services; 3 resigned; 1 received reprimand; 2 were given restricted assignments; 6 were convicted by courts­martial. As of July 20, 1955, 112 cases are pending. The
cases pending are in various stages of investigation. Many may never come to trial for various reasons. Others will be disposed of by minor disciplinary action or may be cleared. However, it is fairly certain that the number brought to trial will be substantially less than the 112, pending, perhaps less than half that many. Some of these last are men who were discharged soon after war’s end and now have a civilian status. Information which came to light after their separation made further action indicated. The Committee feels that justice must be done in these cases-the men who kept faith with their country and fellow prisoners need have no fear-but those who did not should be brought to trial. The Committee recommends that separated servicemen be brought to trial if they are charged with crimes similar to those which brought about the prosecution of other servicemen. Obviously a change from uniform to civilian clothes does not divest a guilty wrong’:doer of responsibility for a crime. A
25
8G3176-li5-5
civilian criminal would not be permitted to wear Army uniform as protective coloration. If action is indicated, the dischargees should be prosecuted in civil courts. When they cannot be tried in civilian courts and the evidence warrants it, they can be brought to trial under the Uniform Code of Military Justice.
The Committee finds the Uniform Code of Military Justice adequate for the prosecution of misconduct cases of prisoners of war in Korea. The Committee recommends that the Uniform Code of Military Justice should govern the final adjudication of cases still pending.
None Were Tried Unjustly Establishing facts in the case against a prisoner charged with misconduct is a lengthy process. Evidence must be studied and assessed. Witnesses must be produced. Depositions must be obtained. In the Armed Forces this amounts to the equivalent of the work a District Attorney’s office must do before it presents a case to a Grand Jury. Consequently, there may seem to be a long delay before an accused service man is brought to formal trial. The Army has not been dila­tory in trying the present cases. Rather it has been thorough and exacting in its research and investigation. The Committee finds that those servicemen who have been prosecuted and those who are facing trial were charged with serious crimes. Charges included homicide, and treasonable collaboration with the enemy, combined with informing on fellow prisoners. No man of any service-Army, Air Force, Navy or Marines-who might have been charged with 8uch crimes would have escaped disciplinary action. As in the past, the crimes enumerated are major offenses in the Armed Forces. (Of course, such alleged misconduct must be substantiated by evidence before disciplinary action is taken.) While the six thus far tried and sentenced to prison have been enlisted men, one officer was also disciplined; one was tried and acquitted; and other cases coming up involve officers. They do not make pleasant reading. A typical case involves an officer who is accused by 180 POWs of delivering anti-U. S. speeches, informing on fellow prisoners, hoarding food, teaching classes in Communism, and ordering men to sign peace petitions. There is no evidence he suffered duress. Another case involves a sergeant accused by many witnesses of “ratting” on his prison-mates, beating a sick prisoner, stealing
a wallet from a dying man, forcing a fellow prisoner out into the snow and leaving him there to die, and drowning three
U. N. prisoners crossing a stream. There was an officer who allegedly courted favors of his cap­tors as soon as he reached prison camp. He is charged with confiscating the small tobacco ration dealt to the other men
and eating more than his share of the food. It is recorded that he made the heartless remark, “The more men who die here,
the more food for the rest of us.” He signed peace petitions, made propaganda broadcasts, and evidently “ratted” on other prisoners. There is no evidence that he was coerced. There is evidence that an enlisted man informed on fellow He wrote Red literature for his
prisoners planning to escape.
He was put in charge of a spy system which resulted
captors. in the punishment of “Reactionaries” in his camp. He asked for the job. No “brainwashing” here. Many of the accused informed on their prison-mates, some­times with dire consequences for the victims who were usually severely punished. The man who tried to escape and was victimized by “ratting” was indeed a Soldier of Misfortune.
Invariably he was accused of breaking camp rules-a violation which “entitled” his captors to punish him. He might be placed in a hole in the ground and forced to endure an animal He might be
existence. He might be sent to “The Caves.” compelled to stand for hours in a latrine. To the combat veterans, “ratting” was a crime as unforgiv­able as treason.
The Turncoats
The 21 turncoats who decided to stay with the Communists­here was another group of “exceptions.” Their number in­cluded men accused of informing-which suggests a good reason for electing to remain in the enemy’s country. Evidence indi­cates that few of these 21 were “sincere” converts to Com­munism. Expediency, opportunism, and fear of reprisal doubt­less influenced some of the group.
Promises Were Not Broken
It has been stated that men were “lured” back to the Ameri­can side by promises of clemency. This misconception, like
27
many others concerning the POWs, is far from the truth. The Army possesses a tape recording of the broadcast made to the men in question. No promise to the effect that they would not be prosecuted was offered. What the broadcast said in sub­stance was this: H the men returned they would not be charged with desertion. “Ratting” was another matter entirely. Also other crimes which were subsequently revealed by investigation.
Finally the Uniform Code of Military Justice is devised for defense as well as prosecution. A military court often bends over backward in the interest of the accused. The man is assured a conscientious defense. If he cares to, he may pro­cure civilian lawyers. There is nothing “star chamber” about a modern military trial. After witnessing the trial of a con­fessed “Progressive” charged with collaborating (and confessing to the charge), a reporter for the Christian Science Monitor wrote: “…. perhaps a word of advice is not amiss; make a trip to one of your local, federal, state, or municipal courts; watch the procedures, then look in at a general court-martial.”
The reporter went on to observe: “The (military) code pro­vides for post-trial procedure, including automatic reviews by the Staff Judge Advocate of the First Army and a special board of review in the Pentagon. H this does:not satisfy the prisoner-and he can show good’ cause-the conviction and sentence can go to the Court of Military Appeals, composed of three civilian judges appointed by the President.” And clemency is possible through the Executive branch of our government.
rService Action Not Divergent
The public has been under the misapprehension that some of the men court-martialed and sentenced for misconduct while in POW camps “had the book thrown at them” while others went free.
Each of the Services thoroughly investigated all alleged cases of misconduct. They used generally identical criteria in determin­ing the disposition of each case. Criteria considered type of misconduct, duress, and indications of informing or “ratting.”
The Department of Defense maintained surveillance over cases brought to trial.
The disposition of all cases was governed by the facts and circumstances surrounding each case and was as consistent, equitable, and uniform as could be achieved by any two or more boards or courts.
No case was brought for court-martial action in which there was evidence of duress, brainwashing or any other type of coercion.The Committee finds that there was no divergent action among the services. The relatively large number of Army POWs naturally shifted the largest number of misconduct cases into the Army’s column. All services employed the same screening procedures in examining repatriated POWs. All services applied the same standards in weighing alleged charges of misconduct. Resultant service actions were based ! on the evidence in eacJt%case. ~
Prisoners Unrecovered
The Korean Armistice Agreement contained a proviso that “each side would directly repatriate all those prisoners of war who desired repatriation.” The COmlnunists did not honor this agreement. After repatriation operations were concluded, the U. N. cOmlnand listed 944 servicemen as “missing” and presumably in enemy hands. Nineteen of this number were finally accounted for by the COmlnunists. By our own U. S. efforts this list has been reduced to 470, some of whom we have reason to believe were at some time in the hands of the enemy. In the United Nations, the United States has consistently demanded an accounting for them. The Committee believes that the Communists should be held strictly accountable for the 470 men still missing in action. Information indicates they were at one time or another in Communist hands.
All have been declared legally dead. Nevertheless, the Com­munists should account for them in accordance with a signed agreement with the United States. The Communists admitted holding 15,Air Force men and two
Department of Defense civilian employees. Their detainment was in direct violation of the Armistice Agreement and the Geneva Conventions.
Concern of Ex-Prisoners
The Committee also concerned itseH with the question of service men who were discharged at the close of the Korean War–men who have been returned to civilian status. Also
repatriated POWs who may have remained in uniform. Because of the misconduct charges brought against a small number of POWs, and the accusations of misconduct levelled at
29
a slightly larger number, some of the former POWs may have grown uneasy about the matter. The Committee considers that no man with a clear conscience need worry about a possible charge.
The repatriated POW has been entitled to special com­pensation for the period of his confinement. Every repatri­ated POW could receive this money by applying for it, with this exception: The war-prisoners who voluntarily, knowingly, and without duress gave aid to, collaborated with, or in any manner served the enemy, are excluded. All repatriated prisoners who receive this compensation have been cleared of any such misconduct charge.
VI
THE ROAD AHEAD FOR AMERICA AND THE ARMED FORCES
Total War for the Minds of Men
America must view the Communist treatment of captives as but another weapon in the world-wide war for the minds of men. The nation must recognize the duplicity of an enemy
which pays no more than lip service to the Geneva Conventions. However, the United States cannot oppose duplicity with a similar policy. To do so might be fighting fire with fire. But the United States refuses to sacrifice principle for expediency. Such ajustification of means for end would mean the abandon­
ment of the cause for which America fights. The national
conscience would revolt at such a solution. The nation must continue to oppose Communism, or any other threat to Democracy, with American weapons and prin­ciples. The machines of war are assured by American enter­prise, science and industry. The principles, home-forged by America’s founders, are more than an heirloom heritage for
They are precepts which must be practiced
showcase display.
if the nation is to remain the guardian of man’s liberties that it is. The responsibility for the maintenance and preservation of the United States and all it stands for is one which must be shared by every citizen. Every American is in the front line in the war for the minds of men.
Code of American Conduct
The battlefield of modern warfare is all inclusive. Today there are no distant front lines, remote no man’s lands, far-off rear areas. The home front is but an extension of the fighting front. In the dreaded event of another all-out war-a thermo­nuclear war-the doorstep may become the Nation’s first line of defense. Under such circumstances, the new code of con­duct for the American serviceman might well serve the American citizen.
31
The Code~s high standards will serve as guides)or .Americans in uniform. Backed by adequate training and education, they will support the assurance of Armed Forces leaders that .Amer­ican fighting men will be fully prepared to meet the enemy on any front.
The Korean story must never be permitted to happen again.
ADDENDA
1. Terms of Reference
2. Code of Conduct
3. Citizens, Former Prisoners of War, and Government
Representatives Who Consulted with the Defense Advisory Committee on Prisoners of War
4. Prisoners of War in History
5. Bibliography
6. Charts
3531’1’6-1111-6 33
ADDENDA NO.1
TERMS OF REFERENCE

BLANK PAGE
THE SECRETARY OF DEFENSE WASHINGTON May 17, 1955
MEMORANDUM FOR THE CHAIRMAN, DEFENSE ADVISORY COMMITTEE ON PRISONERS OF WAR
SUBJECT: Terms of Reference I am deeply concerned with the importance to our national security of providing Americans who serve their country in battle with every means we can devise to defeat the enemy’s techniques. To assure the success of our Armed Forces it is equally as essential to arm them with the best weapons of the mind and body as it is to provide them with the machines of war. Our national military needs must be met. This requires that each member of the Armed Forces be thoroughly indoctrinated with a simple, easily understood code to govern his conduct while a prisoner of war. However, this military need must be met in a manner compatible with
the principles and precepts basic to our form of government.  Enforce­
ment must be accomplished with justice and understanding.
I have appointed this Committee to advise me on this matter.  I request

that you consider the methods we may expect our potential enemy to em­ploy, the obligation which national military needs impose on members of the Armed Forces and the obligation of the United States to afford pro­tection to its citizens in the custody of a foreign power. I direct your deliberation toward the development of suitable recommendations for a Code of Conduct and indoctrination and training on preparation for future conflict. You will also consider certain other related Prisoner of War Problem areas which I will make known.
Staff support will be supplied in the form of a Secretariat, with the Staff Director from the Office of the Assistant Secretary of Defense (M&P), the Deputy Staff Director from the Office of the Joint Chiefs of Staff, and one officer each from the Army, Navy, Air Force and Marine Corps for full-time staff duty.
Legal counsel will be provided by the Office’ of the General Counsel (OSD), and research assistance will be supplied through the Office of the Assistant Secretary of Defense (R&D).
Liaison between this Committee and government agencies outside the Department of Defense will be conducted with the help of the appro­priate office in the Office of the Secretary of Defense as coordinated by the Office of the Assistant Secretary of Defense (M&P).
It is desired that this Committee submit its recommendations within two months after its first meeting.
.,.
~~

C. E. WILSON.
BLANK PAGE
BLANK PAGE
ADDENDA NO. 3
CITIZEN$, FORMER PRISONERS OF WAR, AND GOVERN· MENT REPRESENTATIVES WHO CONSULTED WITH THE DEFENSE ADVISORY COMMITTEE ON PRISONERS OF WAR
BLANK PAGE
CITIZENS, FORMER PRISONERS OF WAR, AND GOVERN­MENT REPRESENTATIVES WHO CONSULTED WITH THE DEFENSE ADVISORY COMMITTEE ON PRISONERS OF WAR
DR. ARTHUR S. ADAMS
President, American Council on Education
and Chairman, Reserve Forces Policy Board
HONORABLE ROBERT B. ANDERSON
Deputy Secretary of Defense MAJOR CLARENCE L. ANDERSON, U. S. Army Medical Corps
MR. MAC ASBELL, JR.
Chairman, Subcommittee for Military Affairs-Peace and Preparednes8 CommitteeAmerican Veterans of World War II
COMMANDER RALPH M. BAGWELL, U. S. Navy
DR. A. BIEDERMAN
Officers Education and Research Laboratory Air Research and Development Command
U. S. Air Force
MR. GEORGE BROWN
Assistant to the President American Federation of Labor
HONORABLE HERBERT BROWNELL, JR.
The Attorney General of the United States
HONORABLE WILBER M. BRUCKER
then General Counsel, Department of Defense, now Secretary of the Army
DR. LEONARD CARMICHAEL
Secretary, Smithsonian Institution
COLONEL A. P. CLARK, U. S. Air Force Chief, Promotions & Separations Division Director of Military Personnel
STAFF SERGEANT RODERICK G. CONN, U. S. Air Force
GENERAL ORVAL R. COOK, U. S. Air Force Deputy Commander in Chief-Europe
DR. MEREDITH P. CRAWFORD
Director, Human Resources Research Office George Washington University
CAPTAIN BERT CUMBY, U. S. Army
43
MAJOR GENERAL WILLIAM F. DEAN, U. S. Army
DR. HAROLD W. DODDS
President, Princeton University
MR. ALLYN DONALDSON
Director, Office of Special Counselor Services
Department of State
CAPTAIN RAY M. DOWE, JR., U. S. Army

ADMIRAL DONALD B. DUNCAN, U. S. Navy
Vice Chief of Naval Operations LIEUTENANT GENERAL G. B. ERSKINE, U. S. Marine Corps (Ret.) Director, Special Operations Office of the Secretary of Defense
CAPTAIN J. S. FAHY, U. S. Navy
Officer Personnel Branch
Bureau of Naval Personnel

MR. CHARLES E. FOSTER
Assistant Director of Legislation
Disabled American Veterans
REAR ADMIRAL D. V. GALLERY, U. S. Navy
Chief, Air Reserve Training

REAR ADMIRAL ELTON W. GRENFELL, U. S. Navy
Assistant Chief for Personnel Control and
ACNO for Military Personnel Security
Bureau of Naval Personnel

LIEUTENANT COLONEL MONROE J. HAGOOD, U. S. Army
Chief, Returnees Section
G-2 Intelligence, General Staff

CORPORAL JAMES L. HALE, U. S. Marine Corps
FATHER THEODORE HESBURGH
President, Notre Dame University
DR. LAWRENCE HINKLE
New York Hospital
BRIGADIER GENERAL S. W. JONES, U. S. Army
Assistant Judge Advocate General for Military Justice

MR. MILES KENNEDY
Director, National Legislative Commission
The American Legion

MR. OMAR B. KETCHUM
Director, National Legislative Service
Veterans of Foreign Wars MAJOR GENERAL A. M. KUHFIELD, U. S. Air Force The Assistant Judge Advocate General
COLONEL H. S. LEVIE, U. S. Army Chief, International Affairs Division Office of the Judge Advocate General
AMBASSADOR HENRY CABOT LODGE, JR.
United States Representative to the United Nations
COLONEL K. K. LOUTHER, U. S. Marine Corps
Assistant Director of Personnel
Personnel Division

LIEUTENANT COLONEL DAVID F. MACGHEE, U. S. Air Force
MR•.S. L. A. MARSHALL
Chief Editorial Writer
The Detroit News

REVERN WILLIA~ MARTIN
Presiding Bishop of Methodist Churches, Dallas, Texas
DR. CHARLES MAYO
The Mayo Clinic
Rochester, Minnesota
LIEUTENANT COLONEL JAMES L. MONROE, U. S. Air Force
Defense Prisoner Officer
Office of the Director of Plans

REAR ADMIRAL 1. H. NUNN, U. S. Navy
The Judge Advocate General
LIEUTENANT GENERAL EMMETT O’DONNELL, JR., U. S. Air Force
Deputy Chief of Staff, Personnel

CAPTAIN PAUL T. O’DOWD, U. S. Army
DR. WINFRED OVERHOLSER, M. D.
Superintendent, St. Elizabeths Hospital
Washington, D. C.
HOSPITALMAN 3D CLASS TED P AILLETTE, U. S. Navy

GENERAL W. B. PALMER, U. S. Army
Vice Chief of Staff
MAJOR MARION R. P ANELL, U. S. Army
G-3 Operations, General Staff

RABBI DAVID DE SOLA POOL
National Jewish Welfare Board
ADMIRAL ARTHUR W. RADFORD, U. S. Navy
Chairman, Joint Chiefs of Staff

MR. VICTOR REUTHER
Assistant to the President . Congress of Industrial Organizations
DR. SCOVEL RICHARDSON
Chairman, U. S. Board of Parole
Department of Justice

HONORABLE ROBERT TRIPP Ross
Assistant Secretary of Defense
(Legislative and Public Affairs)

DR. H. J. SANDER
Officers Education and Research Laboratory
Air Research and Development Command

U. S. Air Force
DB. CARLETON F. SCOFIELD
Human Resources Research Office
George Washington University

DR. JULIUS SEGAL
Human Resource8 Research Ojfice
George Washington University MAJOR HENRY A. SEGAL, U. S. Army Medical Corps
GBNERAL LEMUEL C. SHEPHERD, JR.
Commandant, U. S. Marine Corps
DR. FRANK STANTON
President, Columbia Broadcasting System
HONORABLE ROBERT T. STEVENS
then Secretary oj the Army SERGEANT MARVIN E. TALBERT, U. S. Army HONORABLE HAROLD E. TALBOTT
Secretary oj the Air Force LIEUTBNANT COLONEL WILLIAM G. THRASH, U. S. Marin. Corpa
HONORABLE CHARLES S. THOMAS
Secretary oj the Navy
LIEUTENANT COLONEL C. H. THURSTON, U. S. Army G-1 Personnel, General Staff GENERAL NATHAN F. TWINING, U. S. Air Force
Chiej oj Staff
MR. BERNARD WEITZER
National Legislative Director Jewish War Veteran8 oj U. S. A.
DR. HAROLD WOLF
Department oj Medicine Cornell University
BLANK PAGE
PRISONERS OF WAR IN HISTORY
Dungeon, Cell and Stockade
The captive knight languished in a “donjon.” The languishing was
usually rugged. Facing “durance vile,” many Medieval warriors pre­
ferred death to capture, refusing to surrender and battling until they fell.
The Medieval foot soldier continued to risk death or enslavement at
the hands of a conquering enemy. But in the 17th Century he found a.
notable spokesman in Hugo Grotius-Dutch lawyer, humanist, one of the
world’s great democratic thinkers. At one time, Grotius himself was
imprisoned. He contrived a remarkable escape. Thereafter, he dedi­
cated himself to a study of international law, attempting to devise a set of
rules which combatant nations could follow to mutual advantage. His
efforts to humanize warfare by legal means did not meet with immediate
success. But they did publicize the problem and place it on humanity’s
conscience.
The concurrent rise of nationalism aggravated the prisoner problem.
As national armies grew, so did the complexities of war and soldiering.
Usually the conquering army had few facilities for confining a mass of
captives. Castle dungeons were few and far between. Great bastilles
were built to hold prisoners. The British constructed Dartmoor as a
prison for soldiers captured during the Napoleonic Wars.
As cells overflowed, the captives were crowded into miserable stockades.
They were packed into airless prison ships or bleak compounds. Because
guards were shorthanded, prisoners were frequently chained in droves.
Fortunately for the war-prisoner two lenitives eventually developed. One came in the device of the prisoner exchange. The second stemmed from the concept that the soldier in a national army was a servant of his government. As such he could not be held personally responsible for the actions of that government. Hence, he was not subject to punishment for going to war. The prisoner had right of reparation, and it was due from the “detaining state” and not from individual captors. The point bears on the problem of the “war criminal”-one of the serious questions involving the modern POW.
The issue arose during the American Revolution. So did other issues pertinent to the POW problem of today-questions involving treatment of captive by captor; prisoner conduct and allegiance; prison break and escape; truce exchange or prisoner rescue. The American patriot’s first experience with these issues was not a happy one.
The First American POW’s
George III decreed that all Americans who revolted against Crown authority were war criminals subject to hanging. Doughty Abraham Whipple of Rhode Island reminded the king, “Always catch a man before you hang himl” But every Revolutionary soldier and sailor went to war under shadow of the gallows. The noose was relaxed only because it proved impractical and English liberals deplored suoh high-handed tyranny. Soon after the outbreak of hostilities prisoner exchanges were begun and paroles arranged. Whipple himself was eventually captured. The Red Coats considered the “Informal Commodore” worth more as hostage than hangee.
Captive A,;merican seamen were lodged in the worst of England’s naval prisons, the “Old Mill” at Plymouth. Early in the war Dr. Franklin informed Lord Stormont in Paris, “The United States are not unac­quainted with the barbarous treatment their people receive when they htlve the misfortune of being your prisoners in Europe.” Lord Stormont’s answer was blunt. “The King’s Ambassador receives no applications from rebels unless they come to implore His Majesty’s mercy.” Mal­treatment of captured Yankees led Paul Jones to raid Nova Scotia in a daring rescue effort. “Justly indignant at the suffering of these Ameri­cans, I resolved to make the greatest efforts to succor them.” His sensa­tional raid on England featured an attempt to kidnap the Earl of Selkirk to force a prisoner exchange.
A view of Red Coat prisons in America comes from the pen of Ethan Allen, himself made captive. “The prisoners who were brought to New York were crowded into churches by the slavish Hessian guards …•. I have seen sundry of the prisoneril in the agonies of death, in consequence of very hunger; and others speechless and near death, biting pieces of chips; otherS pleading for God’s sake for something to eat, and at the same time shivering with cold. . . . The filth was almost beyond de­scription…. I have seen in one of the churches seven dead at the same time, lying among the excrement of their bodies…. I saw some sucking bones after they were speechlesil. • . . I was persuaded that it was a premeditated and systematized plan of the British Council to destroy the youth of our land.”
, From Bunce’s Romance of the Revolution comes an equally harrowing account. “Of all the atrocities committed, those in the prison ships of New York are the most execrable •… there is nothing in history to excel the barbarities there inflicted. Twelve thousand (American pris­oners) suffeted death • • . • on board the filthy and malignant ships. The scenes enacted in these prisons almost exceed belief.” Worst of the prison ships was the hulk “Old Jersey” anchored in Wallabout Bay, Brooklyn. The many dead, thrown overside, silted the bay with skele­tons. A poet patriot engraved the picture in verse:
“Let the dark Scorpion’s hulk narrate,
“The dismal tale of Red Coat hate;
“Her horrid scenes let Jersey tell,
“And mock the shades where demons dwell

The Red Coat leaders countered that the Yankees tarred and feathered Tory loyalists and that captive British soldiers were worked in brutal mines. The claim was made (in some instances substantiated) that Con­tinental Navy captains slew naval prisoners. But “Old Jersey” remained a blot on the record.
In the “Old Mill” at Plymouth, England, some of the Revolution’s greatest sea warriors were imprisoned. The prisoners were chained and placed under heavy guard. Yet the “Mill” featured two of the most remarkable escapes in history-exploits which inspire American fighting men to this day. With almost superhuman determination, Captain Gustavus Conyngham and a group of fellow prisoners tunneled out and made a get-away. Thereby, as Conyngham dryly put it, “committing treason through His Majesty’s earth.” Aided by friends in the English underground, the intrepid Joshua Barney contrived an over-the-wall escape. Eluding pursuers, he bluffed his way across England, and reached Holland in disguise-an exploit to rival anY’thing in Dumas. So was born the tradition that the American POW does not meekly accept captivity.
“The Meaning of Treason”
Laws affecting military discipline were evolving. Of course, the basic
codes prevailed. Treason was punishable by death. Treachery could
not be countenanced. The question of treasonable collaboration while a
prisoner of the enemy came up during the Revolution. The case and
its decision-a precedent-was recorded in 1781. Respublica vs. M’Carty.
The accused fac,ed trial for serving in enemy uniform after capture. He
claimed he was forced to do so under compulsion of duress. The court
held that the duress was insufficient, only the threat of imminent death
would constitute adequate excuse.
Clearer cases of treason were made against enlisted men who deserted
their posts and went over to the enemy. Paul Jones had such a traitor in
his raider, the Ranger. The man, a David Freeman, fled ship at White­
haven and tried to alarm the town. If Jones had caught him-I
During the Civil War many prisoners of war changed uniform. Some 3,170 Union captives exchanged blue for gray. About 5,450 Confederates went over to the Federal side. One famous company of “reconstructed Rebs” was sent West to man a frontier outpost and relieve a Union garrison needed on the front.
In cases involving disloyal prisoners of war, the question of duress-­or degree of duress–was weighed in the balance. The Union Judge Advocate General recognized coercion as a defense. It was held that “extreme suffering and privation which endangered the prisoner’s life” might justify his enlistment with the enemy. However, if the prisoner made no effort to escape when opportunity offered, he was liable to a desertion charge. War Department General Order No. 207 (July 1863) provided that it was the duty of a prisoner of,war to escape. The order was designed to curb wholesale surrenders by men eager to obtain parole and evade further military service.
The war was opposed by Northern “Copperheads.” Lincoln was inclined to be lenient. Referring to “Copperhead” leaders, he asked, “Should I hang a young soldier, and free a wily politician who induces him to desert?”
Lieber’s Code
Civil War prison camps were harsh. In Southern camps, particularly Andersonville and Florence, men suffered greatly from malnutrition and lack of medication. The Union prison on Johnson’s Island in Lake Erie was a bleak Alcatraz, and Union stockades at Point Lookout on the Potomac were described as “hell holes.”
Humane citizens, North and South, appealed for lenient treatment of captive soldiery. In 1863 President Lincoln requested Professor Francis Lieber to prepare a set of rules for immediate promulgation. Lieber’s
Instructionsfor the Government of Armies of the United States were probably
the first comprehensive codification of international law issued by a
government. Based on moral precepts which recognized the enemy as a
fellow human with lawful rights, they embodied the first code pertaining
to prisoners of war. Lieber’s code contained the following injunctions:
No belligerent has the right to declare that he will treat every captured
man in arms . . . . as a brigand or a bandit.
A prisoner of war is subject to no punishment for being a public enemy,
nor is any revenge wreaked upon him by the intentional infliction of any
suffering, or disgrace, by cruel imprisonment, want of food, by mutila­
tion, death. or any other barbarity.
A prisoner of war remains answerable for his crimes committed before
the captor’s army or people. (for crimes) committed before he was cap­
tured. and for which he has not been punished by his own authorities.
A prisoner of war . . . . is the prisoner of the government and not of
the captor.
Prisoners of war are sU,bject to confinement or imprisonment such as
may be deemed necessary on account of safety, but they are to be sub­
jected to no other intentional suffering or indignity.
A prisoner of war who escapes may be shot, or otherwise killed ill
flight; but neither death nor any other punishment shall be inflicted on
him for his attempt to escape, which the law of order does not consider
a crime. Stricter means of security shall be used after an unsuccessful
attempt at escape.
Every captured wounded man shaH be medically treated according to
the ability of the medical staff.
Lieber’s code was a milepost on civilization’s highroad. But its commandments were easier to publish than practice. For example, the code stipulated that prisoners should receive rations similar to those issued his captors. Military and economic stringency often negated the inten­tion of this rule. The Confederacy agreed to recognize and apply the code. But under pressure of blockade, the South was slowly starving and Southern soldiers and their prisoners showed the effects of the scarcity of food.
Lieber recognized that war was a harsh taskmaster. Prisoners would have to obey various prison-rules. They would be punished for infrac­tions. During the Civil War, prisoners were sometimes chained together, placed in brutal irons or “bagged” (a suffocating canvas sack tied over the head). They were placed in solitary confinement, and denied water. These vicious measures were seldom used as disciplinary punishments. More often they were employed to wring information from a captive. Such “third degrees” were sub rosa and usually applied by military police or Secret Service agents.
Interrogation and Information
In the American Civil War, espionage, military intelligence,and counterintelligence were important features of the conflict. In the two previous wars fought by the United States few tr!tined intelligence opera­tors had served the American forces. Efforts to gather military informa­tion had been haphazard and disorganized. The advent of the Pinker­
ton Service which operated with McClellan, the Federal Secret Service
under Colonel Lafayette Baker, and a well-organized Confederate Secret
Service put intelligence-gathering (and defensive counter–intelligence) on
a modernized basis.
Spies were called “scouts.” As old as war was the rule that the enemy
spy, caught in disguise, faced death. They were beyond the pale of
prisoner-of-war exemptions. The Civil War featured many heroic spy
exploits. It also featured daring raids on enemy lines to capture troopers
for interrogation. In every war thereafter, military intelligence would
be closely linked with prisoner interrogation.
The officer or man who gave his captors military information was as
dangerous to country and cause as the deliberate traitor. So soldiers were
enjoined “not to talk.” Lieber set down the rule:
Honorable men, when captured, wiIl abstain from giving to the enemy
information concerning their own army, and the modern law of war per­
mits no longer the use oC any violence against prisoners, in order to
extort the desired inCormation, or to punish them Cor having given Calse
information.
Again the rule was easier to recite than observe. On the one hand,
there was the interrogator ordered by his chiefs to acquire vital informa­
tion-intelligence which might win a battle and save many lives. On the
other hand, there was the prisoner, sworn to withhold information which
might cost a battle and the lives of his countrymen. Here are the opposing
forces for a cruel contest. By virtue of the fact that he is a captive, the
odds are all against the prisoner. His refusal to talk inevitably invites
some form of duress. Accordingly, Lieber’s Code outlawed violence by
the captor.
Civilized men did their best to follow the precepts of the Golden Rule
and Christian doctrine.
So another significant effort was made to regulate warfare by ethics. The going was slow but the steps were in the right direction. A promise of something better for the POW was coming from Geneva.
The International Red Cross
In 1864, the Swiss philanthropist Henri Dllnant wrote a book which set the stage for a conference at Geneva and the founding of the Inter­national Red Cross. The Red Cross offered relief to all combatants, regardless of the flag they served. All participants agreed that “the sanitary personnel might continue its duty in the presence of the enemy.” Through the determined campaigning of Clara Barton the United States joined the convention in 1882, and the American Red Cross was organized.
Dunant’s work inspired the founding of other prisoner-relief societies. In 1874 a conference was held in Brussels at the instigation of the Russian Government. Delegates of all the major European nations attended. A code, based on Lieber’s, was projected. The Brussels code was not ratified. But it strongly influenced the first Hague Conference which met at the turn of the century.
The devoted men at Geneva and Brussels worked overtime to devise international laws which would be effective. They were confronted with race prejudice, ancient grudges, super nationalism, and mistrust.
Czar Nicholas II sponsored the Hague Conference of 1899 which
broadened the scope of Red Cross operations. Representatives of 26
nations attended the Conference. Discussed were disarmament proposals
and the possibility of establishing a world court. The delegates negotiated
various agreements relating to warfare and war-prisoners.
The prisoner-of-war code adopted at the Hague was based on the one
proposed at Brussels. It embodied many of Lieber’s original stituplations.
Prisoners of war were to be considered as lawful and disarmed enemies.
They were captives of the hostile government (and not in the power of the
individual captors or jailors). Humane treatment of prisoners was
obligatory. And it was agreed that unruly prisoners could be punished
for insubordination.
Twenty-four of the attending powers ratified the Hague Convention.
Signers included the United States, Germany, France, England and Rus­
sia. A hopeful generation called the Conference the “First Parliament of
Man.”
Acting on a Russian proposal, the Netherlands called a second Hague
Conference in 1907. During this conference, the powers affirmed their
adherence to the principle’s previously adopted.
So the Red Cross raised its flag in the capitol of every modern nation including Russia. Eventually the Soviet Union agreed to follow the rules laid down by Hague and Geneva Conventions. At the outbreak of the Korean War, the North Koreans and subsequently the Red Chinese announced an intention to observe the rules. While the Red Cross was conspicuous by its absence in North Korea, a few of the POWs did receive mail and packages. And some of the Chinese held their fire when medical troops were recovering wounded. The Red Cross was there in shadow, if not in substance.
The First Total War
Another conference was in the making when the First World War exploded. The German intentions seemed only too clear when the Kaiser’s spokesman described a treaty with Belgium as a “scrap of paper.”
The concept of total war-mustering an entire nation and its forces for the conflict-was not new. But in the modern sense it was first advocated by the elder Von Moltke. If rules and codes abetted the war effort, observe them. If they didn’t, they were unrealistic and to be dispensed with. Total war was no gentleman’s game. Any expedient that spelled victory was justifiable.
Von Moltke’s concept was not entirely accepted by the High Command, but the Prussian school generally endorsed a policy of Schreklichkeit (planned terror or “Frightfulness”) to subdue defiant enemy peoples. Prussian “Frightfulness” was amateurish, and not very effective. But it did represent a 20th Century development in psychological warfare. Its usefulness was countered because it backfired in another area-propa­ganda warfare.
Organized propaganda was an innovation. The practice of propa­ganda was as old as preaching, electioneering or salesmanship. Early American war propaganda was written by Thomas Paine whose book Common Sense was the sensation of ’76. Washington urged his troops to read it. And the phrases “summer soldier” and “sunshine patriot” scathed the faint-hearted of the Revolution.
Captain David Dixon Porter, U. -So N., pioneered with propaganda
during the Civil War. Past the Vicksburg forts he floated a dummy gun­
boat bearing a huge sign advising: “Deluded Rebels, Cave Inl” Porter
was probably the originator of the leaflet barrage. From one of his gun­
boats he flew kites over Vicksburg. A cut string would drop a bag of
letters on the besieged city. “Think of chicken and biscuitsl”
But organized propaganda-contrivedpress releases, editorialcampaigns,
leaflet barrages-the use of all kinds of mass media to reach a national
audience or influence the enemy populace or army-this was something
new. From the outset Germans and Allies saw it as a tremendously
powerful weapon. Offensively and defensively, both sides employed it
to the utmost. Again the Germans went wide of the mark. Their propa­
ganda “threatened.” Basically, propaganda is advertising. Force it,
and it becomes repellent.
The Germans introduced another innovation during World War I.
This new element could be called “Political Warfare.” As distinguished
from propaganda, it involved the process known today as political indoc­
trination. In 1914 this came as an extraordinary (and an alarming)
machination. The Germans did not employ it successfully or on a large
scale. They were pioneering. But they set the pattern for the future.
At Limburg and Zossen, the Germans set up what were known as “politi­
cal camps.” To these camps weresent prisoners who seemed likely sub­
jects for subversion. The inmates were quartered in comfortable barracks.
Instead of the normal prisoner ration they were fed the best viands avail­
able. Tobacco and candy were plentiful. During the first eighteen
months of the war, Irish prisoners were selected for these segregated camps.
As reported by Major H. C. Fooks in his book Prisoners of War: “One commandant talked to his men and stated that the emperor was aware of the downtrodden state of Ireland, and wished that the Irish captive5 be placed in a separate camp, where they would be better fed and treated better than the English captives….. Sir Roger Casement was sent to the Limburg Camp to give a series of lecture’!.”
Casement was a famous Irish rebel-in British eyes an arch-traitor. He had slipped into Germany to organize an anti-British brigade. His attempts with the Irish prisoners of war were a pathetic failure. From Fook one learns: “The lectures were poorly attended and as soon as the real purpose of them was disclosed serious trouble developed in the camp wherever Casement appeared; in fact a guard had to be sent with him to protect him from the indignant Irishmen. After every inducement had been held out for a long time, including freedom of the prison camps, and especially the privilege of having an Irish regiment of their own with green uniforms and a harp embroidered on the coat, only thirty-two men volunteered for the new regiment from four thousand captives. The thirty-two were despised by their compatriots.”
Fook tells of a Roman Catholic priest, an Irishman, who was sent to the Limburg camp by special arrangement with the Vatican. This clergy­man, Father Corotty, refused to cooperate with Casement and the Ger­mans. He denounced them both to the prisoners and urged the captive soldiers to remain loyal to their oaths-and their king. Father Corottyat Limburg was a valiant pleader. He would have his counterpart in Father Emil Kapaun-a brave priest who died in a prison camp in North Korea.
One inay find another parallel in the 32 irish converts who joined the
German side in World War I and the 23 defectors who turned the coat
in Korea. A final parallel comes from the World War I account. “Mter
the failure of such methods the Irish captives were subjected to rigid
discipline and limitation of liberty. The leaders in this antagonism
to German diplomacy were removed from the main camp to . . . . .
working camps where they were forced to live on the camp foods without
receiving their packages and letters which would normally have been for­
warded to them. Bitter complaints were made to the effect that men
too ill to get out of bed were ordered to leave in violation of the orders
of the medical officers . . .. Reprisals by the Germans were not un­
common.”
As a footnote to this political indoctrination program, Roger Casement
was captured by British agents when a U-boat landed him in Ireland.
Summarily tried as a traitor, he was found guilty and executed.
At war’s end approximately 2,200,000 prisoners were in the hands of
the Central (Germanic) Powers. The Allies were holding 615,900. The
Americans had captured some 49,000 Germans. The Germans captured
4,120 Americans. A tota! of 147 Americans died in the enemy’s prison
camps. Few Americans escaped from Germany, but daring attempts
were made.
By and large, the American prisoners had been well treated. Undoubt­edly the Klaiser’s military leaders foresaw the results of America’s entry into the conflict. With the handwriting on the wall it was only expedient to treat captured Doughboys with lenience.
In reviewing World War I-the First Total War-one may note four major developments:
Scientific intelligence warfare.
Psychological warfare.
Propaganda warfare.
Political warfare.
All dealt with the human mind, and all would be brought to bear on future prisoners of war-in World War II and in Korea.

Star Chamber Confessions
Intelligence warfare, psychological warfare, propaganda warfare and political warfare did not end with the signing of the Armistice. World War II began almost as soon as the First World War was terminated. Out of Europe’s ruins crawled Fascism and Nazism. Communism had already taken root in the wreckage of Imperial Russia.
Began a war for the minds of Europe’s people-those millions con­temptuously looked upon by War Lord and dictator as “the masses.” While spies and subversives swarmed across the Continent, the “masses” were deluged with propaganda appeals. Salute with upraised hand, with clenched fist and cocked elbow-here comes the Millennium! The Rebirth of the Roman Empirel The Thousand Year Reichl International Com­munisml The democratic nations looked on in helpless alarm.
The Fascist Terror seemed mostly bugaboo. But Nazi Germany pro­duced a horror of pogroms. Concentration camps. Torture chambers. Finally, in the early 30’s, Hitler’s Blood Purge.
Then, from the murk of Communist Russia, came a startling series of
headlines.
In 1937, the Kremlin staged a wholesale purge of Bolshevik traitors and
defectors. Among the number brought to trial were some of Russia’s
toughest Red commissars and no less a figure than Marshal Tukhachevsky,
one of the ablest military strategists in Europe. Western observers were
astounded to hear the accused stand up in court and openly confess to
treason. A number of them read or recited long speeches, admitting to
designs against the Soviet Union and the regime in power, and voicing
penitence for their deeds. With fantastic self-abnegation, some of the
confessors condemned themselves and recommended judgment without
mercy. As they marched off to face firing squads or the oblivion of Siberia,
the world stared after them in astonishment.
The techniques used in the cases of the Russian political prisoners dem­
onstrated that they had a very effective means of forcing individuals to
make false confessions. To some extent this special intensive and pro­
tractive technique, sometimes referred to as “brainwashing”, was em­
ployed on American prisoners of war in Korea. It was used to elicit false
confessions and other statements for propaganda purposes.
Threats. Blows. Days in solitary confinement. Driblets of food and
sips of water. Then questioning, hour after hour, a brilliant light in the
eyes. Exhaust.ion, then, perhaps, sudden leniency. An abrupt shift from
brutality to smiling kindness. Anything to throw the victim off balance.
And if the “kindness” fails, another resort to remorseless punishment.
The simple carrot-and-prod procedure. Months of such treatment could,
and evidently did, crack the staunch commissars. A sensitive man
would succumb sooner. A Dutch doctor coined the term for this type of
psychological and physical pressuring-“menticide.”
The Geneva conventions outlawed duress and physical torture. But a cynical and rutWess enemy would hardly balk at the breakage of humane rules. -Moreover, he might claim that mental torture did not constitute physical torture. In any event, the question seemed academic as far as the Nazi S. S. were concerned. But as Germany marched toward war there was some hope that the professional Wehrmacht commanders would abide by the Geneva Code. It would appear that many of them did.
The Second Total War
Seen as an extension of World War I, the global war exploded by the Axis Powers produced nothing new in the way of warfare until its atomic ending. Unless it could be stated that air raids and buzz bombs extended the battle front to the home front and put every civilian-man, woman, child-on a potential firing line. And for the first time in modern history, thousands of civilians were taken prisoner and impounded in concentration camps.
The conflict that would leave millions of dead was an anthology of atrocities. The civilians suffered most. Rotterdam blasted. Coventry blasted. Lidice destroyed. Thousands of peasants herded to the wall and shot. Victims beaten and tortured by their S. S. captors. Resist(,)rB starved, flogged, mutilated, slain in endurance tests and medical experi­ments behind the walls of Oranienburg and other “special prisons.”
The horrors endured by captive civilians in Nazi hands defy assessment.
Their sum may never be totaled. The authors of the Blood Purge silencedmany of their captives and saw to it the records were destroyed.
Prisoner Interrogation-A Battle of Wits
During World War II a total of 129,701 Americans were captured bythe Axis enemy.
Perhaps fearing reprisal more than public opinion, the German militarywere fairly punctilious in handling American POWs. Americans captured
in Italy were awarded similarly “correct” treatment. The prisoners wereusually allowed to organize in groups. Captured officers assumed com­mand according to rank.
The POWs often ran their own work details.In lenient camps sports and shows were permitted. Red Cross packageswere distributed, and mail call was the happiest moment of the month.
But the men were behind barbed wire, and Americans behind barbed wireare never happy ·men. ­In the matter of prisoner interrogation the German. military seem tohave been punctilious enough. At least toward the Americans. Therewas none of the brutalizing that was evident in such Japanese camps asOfuna and Ashio, where American submariners were tortured.The Americans captured by General Homma’s forces on the BataanPeninsula and at Corregidor counted themselves fortunate if they reacheda prison camp alive.
In the “Bataan Death March” General Wainwright’ssurrendered troops endured one of the most excruciating ordeals -of the war.Britons and Australians caught at Singapore were similarly brutalized.The veneer of civilization was thin on the Emperor’s soldiery.
It peeledoff like varnish as the Rising Sun blazed in triumph over the Southwest
Pacific.
Airmen and submariners bore the brunt of interrogation ordeals.Reason: they usually possessed information of more value to the enemythan an infantryman’s.
They may have flown from a carrier or perhaps
from some hidden island base. The name of the flattop, the location ofthe base–this was vital intelligence. The submariner knew a dozensecrets: his sub’s cruising range, its radar and sonar devices, its torpedogear. One of the best kept secrets of the war (and one of the most im­portant) was the depth at which a U. S. submarine could operate.So pilots and submarine sailors who were captured “got the works.”The Japanese did not employ subtle interrogation methods. Nor did theyemploy the methods associated with “menticide.” Prisoners were floggedand tortured. They were treated to such Oriental punishments as judoexperts and hatchet men could devise. One submarine captain who took itwas a skipper whose vessel had been battered into surrender. Cigaretteburning, bamboo splinters under the fingernails-this officer’s ordealhardly bears recital. But the Japanese did not extract from him thediving depth of U. S. submarines.In the South Pacific after the war, Americans found the graves ofcaptured destroyermen. Several of the bluejackets had been beheaded.And on Palawan Island was found a trench containing the bodies ofAmerican prisoners who had been drenched with gasoline and burned alive.Their story was told by a survivor who had escaped this horror.These grim reports from the Pacific may be detailed as the exception.
Late in the war Japanese prison camps were on a par with those in some
58
backward country at century’s turn. The blockaded Japanese were reo
duced to meager rations. The Philippines and the Home Islands were
undergoing non-stop bombardment. Consequently food and medical
supplies were at barrel-bottom. The POW’s received the leftovers.
But beheadings, torture, Palawan massacre aud “Bataan Death March”
were on the record. Like the Malmedy massacre in the Belgian Bulge,
like Buchenwald and Belsen, they awaited an accounting. The outraged
people of the United Nations demanded retributive justice.
The Germans applied other and seemingly more effective interrogation
methods. Consider the testimony of Hanns Joachim Scharff. Scharff
was an interrogator stationed at Auswerstelle West, Oberursel, Germany.
This was the camp where all captured aviators (except Russian) were
brought for questioning. Every American fighter pilot made prisoner by
the Germans was sent to Oberursel. Scharff questioned 500 of them.
From “all but a handful” he obtained the information he was after. His
work was so successful that he came to the notice of the Department of
Justice. After the war he was brought to America to explain his remark­
able methods.
As it evolved, Scharff’s methods were not so remarkable. It might be
said that he “killed his victims with kindness.” Expecting to face a
Nazi terrorist or anS. S. savage, the captured pilot found himself con­
fronting a genial English-speaking German who seemed as polite and
friendly as a new acquaintance on the college campus. Scharff would
open the interview by offering the prisoner a chair and a cigarette. “Lieu­
tenant, it is my duty to ask you certain questions. May I have your
name, rank and serial number?”
The prisoner would cheerfully comply. At that date U. S. Army regu­
lations required him to “maintain silence” after he had spoken the required
identification.
“Now, then,” Scharff would go on amiably. “That number of yours. Are you a bomber? Or a fighter pilot?”-No answer.-“What is your home ad.dress, Lieutenant?”-No answer.-“What type of plane do you iiy?”-The Lieutenant grins and shakes his head. Scharff chuckles. “I see 1 can’t get anything out of you. Here take a look at the latest Stars and Stripes. I’ll be back in a few minutes.”
The chair, the cigarette, the Stars and Stripes~these are stage props cunningly contrived to set the prisoner at ease. The interrogator’s brief retirement gives the prisoner a chance to relax. A relaxed man may be caught off guard. The next move by the interrogator (and in all the moves in this game he has the advantage and maintains what chess players call the initiative) puts him in touch with BUNA. The initials stand for Beute und Nachrichten Abteilung, which translates rougWy into “Booty and Information.” At this BUNA center the Germans assembled every­thing recovered from downed pilots. The booty included things as innoc­uous as mess-hall tickets, book matches, bits of maps, lucky pieces, and anything else scavanged from pilots shot down over the lines. More informative items were letters, snapshots, or newspaper clippings found on the dead or taken from prisoners. Needless to say, wrecked aircraft were salvaged whenever possible. If the planes were blown to pieces, the pieces were recovered and shipped to an assemblage base similar to BUNA.
The BUNA center also contained thousands of dossiers on prisoners.
And thousands of dossiers on officers who had not been taken prisoner. Suppose the captured Lieutenant were a football hero. Doubtless when he enlisted the old home town published his name in the paper and his photograph with it. The chances were that BUNA had his name, his address, his picture, and the names of his uncles, his cousins and his aunts. Also his nickname-“Bud.” Perhaps even the fact that his father was president of the local bank. If “Bud” graduated from college or military school or academy, his picture would be in the classbook along with those of his fraternity brothers. All of which made it easier for Interrogator Scharff. (The Germans were not the only ones who assem­bled such information. It was said that when the war broke out the British knew the name and address of every officer and man in the Nazi Navy.)
Now, the game became relatively simple for Scharff. Armed with background information from BUNA, he would return smiling to’:the contest. “Well, Bud, you see I have found you out. You flew over here in a P-38. Your squadron commander, Jack Williams, is in prison down the line. He’s a nice guy. I couldn’t get anything out of him, but my intelligence boys came across a news clipping. You fellows flew in here from Tunbridge Wells. Nice going. By the way, how’s your little sister Peggy? We’ve got a chap in my outfit who used to live in Oak Park. I understand your father is president of the First Nationa(Bank.”
What could be more disarming than this routine? Of course, it wasn’t always that easy. The Lieutenant might refuse to rise to the bait. BUNA might have more trouble acquiring biographical information. But the illustration suffices. Nine times out of ten a prisoner would be completely “beaten” when the interrogator came up with his nickname, the name of his squadron leader, and intimate details of his home. Not to mention the type of plane he flew, the armament carried by the plane, its rate of climb, and so on.
So Scharff was able to report that he “broke” iiimost 500 American pilots. Mter the opening breach, the follow-through was usually easy. The prisoner would be invited out for a stroll in the park. Scharff would take him to some quiet beer garden for a friendly Bock. A few aimless remarks about nothing at all. Then Scharff would slip in the trick question, shrouding it with indirection-an indifferent tone, an offhand manner, or a yawn. That was the way it was done. A game of words. A battle of wits.
And what if the prisoner proved obdurate and buttoned up into absolute silence? Then would come the glass-of-water trick. Or one of its many variations. There were ways to slip a pill into the prisoner’s glass. Ten minutes after drinking, he might become a very sick man. Nothing fatal or injurious. Nothing worse than something that felt like acute indiges­tion.
As the prisoner doubles up, sweating, the interrogator is most solicitous. “LieutenantI You are sick! It may be peritonitis! You must go to the hospital immediately. Surely you have a family. You will want us to notify your next of kin if-!”
No prisoner wants to be buried in an unknown grave. Even so, a man might remain defiant. And Scharff would then encourage such defiance. “Hal You won’t tell me the name of your squadron com­mander. What is the name of your commanding general?” The defiant
Sehr gut, he goes back to his cell. There he
prisoner refuses to speak.
is locked up with his cellmate-a pleasant fellow from Ohio who was

Did they sweat you out?” Andcaptured early in the war. “Huh!
“Bud” nods grimly, “Yeah, but they couldn’t get General Jones’ name out of me.” And at that moment they’ve got it. Perhaps by concealed
microphone. Perhaps from the pleasant cellmate who lived ten years in Ohio before he returned to his home Germany. They were not tortured
So most of Scharff’s victims were tricked.
They were baffled by stage­
with thumbscrews and cigarette burns. craft, misleading geniality, glib queries that were as fast as the jabs and feints of a boxer. The average prisoner who faced Scharff was at almost hopeless disadvantage. He was somewhat in the position of a civilian who might be compelled to improvise his own defense against a skilled and wily District Attorney. In the war there were many Scharffs. Not all of them were on the German side. Adept Allied interrogators pumped information from In the closing
case-hardened Luftwaffe pilots and U-boat skippers. days of the war they pumped their rivals-captured Nazi interrogators­among them Joachim Scharff. In this duel among experts the Germans found themselves hoist on their own petards. The prisoner in an interrogation center is a fly in a web. The enemy has all the say. At the end of World War II the consensus of the experts was this: It is virtually impossible for anyone to resist a determined interrogator.
But the experts came up with another consensus: Although a determined
The
interrogator cannot be resisted, he may be evaded by the prisoner.
prisoner may dodge loaded questions.
Treason Trials, World War II
As in World War I, and, indeed, every previous major war, the Second World War disgorged a number of indigestible traitors. Among the first arrested by the United Nations powers were the Quislings who had willingly cooperated with the Nazis.
In Holland, Belgium, Norway, Denmark and other occupied countries
treasonable collaborators were summarily dealt with. Those who had their heads shaved by angry partisans got off easily. Some were tried by
kangaroo court and shot.
Some British servicemen were court-martialed for treasonable col­
The accusp,dlaboration with the enemy while they were prisoners of war.
pleaded coercion as a defense. As had the Federal judges of the Civil War, the British military judges took into account “degree of coercion.”
They seem to have been severely exacting in the case of Henry Rose, a Navy stoker. Rose had been captured, beaten, threatened with death, and shown two terrifying corpses. (An example of German interrogation at its worst.) The sailor then blurted out the information his captors
wanted. The British found him guilty of “aiding the enemy,” and
sentenced him to 16 years hard labor (subsequently reduced). On the other hand, Major Cecil Boon, charged with writing a propaganda letter for the Japanese in Hong Kong, and informing them of a prisoner escape plot, was acquitted on the score that they had threatened him with
the “punishment of death.”
61
American prisoners of war charged with treasonable conduct included
Sergeant John Provoo of the U. S. Army, and Chief Signalman Hirshberg
of the Navy. Another case involved an Army sergeant who wrote to a
Japanese surgeon, offering to aid the enemy. .
Altogether it would seem that the Americans taken prisoner in World
War II established a remarkably fine record for courage, endurance, and
unyielding loyalty. Like their fathers in the A. E. F. of World War I,
they stood up to a ruthless enemy, and stood up better than well. For
the most part, the soldiers or the aviators who talked to German inter­
rogators were tricked into talking by experts at the game.
The troops went to Normandy and Guadalcanal knowing Why We
Fight and The Nature of the Enemy. The American soldier and his sailor
team-mate were well informed on Hitler and Tojo.
So American POWs of World War II knew pretty much what it was all
about. There were no Arnolds, but many Wainwrights.
Of the 129,701 American prisoners in Axis captivity, 14,090 died in the
enemy’s prison camps. The percentage-10.9%-was cruel. But un­
questionably it would have been higher had morale been as low as it was
in the subsequent Korean War.
Geneva Conventions of 1949
Troubled by the terrible death-toll of prisoners in World War II, dele­
gates of the many countries met at Geneva in 1949 to formulate and
define higher standards of treatment for POWs. The articles of the earlier
Geneva Convention were clarified and strengthened. Fifty-seven nations
signed the new Geneva Treaties.
Although the Russians had not participated in the Geneva (POW)
Conventions of 1929, the Soviet Union signed the 1949 Convention. So
did eight other nations in the Communist bloc. The U. S. S. R. and its
satellites held out, however, on certain points. One of their reservatioDs
concerned Article 85, Relative To The Treatment of Prisoners of War.
The Article reads:
Prisoners ‘of War prosecuted under the laws of the Detaining Power
for acts committed prior to capture shall retain, even if convicted, the
benefits of the present Convention.
The Soviet delegate entered the following reservation:
The Union of Soviet Socialist Republics does not consider itself bound by the obligation, which follows from Article 85, to extend the application of the Convention to prisoners of war who have been convicted under the law of the Detaining Power, in accordance with the principles of the Nuremberg trial, for war crimes and crimes against humanity, it being understood that persons convicted of such crimes must be subjected to the conditions obtaining in the country in question for those who undergo their punishment.
This reservation is a disturbing indication of Soviet intention so far as applying the conventions is concerned.

The American Way
The Russians held thousands of German soldiers in captivity at the close of World War II. Brutality breeds brutality. Hitler’s legions had murderedthousands of Russian and Ukrainian peasants. And the patriotic
Slavic soldiers sought reprisal. But the men in the Kremlin had other
designs. Doubtless to the surprise of many Russian Army veterans, the
captured invaders were herded into “political camps.” Instead of shoot­
ing Panzer officers and Stuka pilots for outrages committed, the Red com­
missars shoved them into colossal indoctrination mills. From dawn to
dark, week in, week out, the prisoners were besieged with Marxian doctrine.
It would seem that their crime, after all, was not invading Russia. They
had been guilty of anti-Communism!
The Soviet campaign to indoctrinate masses of German prisoners with
Communist ideology emerges as one of the strangest war-moves in history.
The Reds, of course, were copying the tactics employed by the Germans in
World War I when they tried to indoctrinate Irish prisoners with Kultur.
But the early German attempt was picayune compared with the Soviet
program. The German attempt failed. The Red indoctrination pro­
gram gained hundreds of German converts. Prize of the lot was no less
a figure than General Von Paulus, captured at Stalingrad.
While Soviet Communists were haranguing German war-prisoners, the Chinese Reds, waging civil war, adopted similar tactics. Nationalist prisoners were herded into “political camps” and barraged with the Red Chinese version of Marxian doctrine. But the reindoctrination of a Nazi-indoctrinated German demanded a high-powered approach akin to evangelism.
It was nothing more than a high-gear recruiting campaign. It did not involve “menticidal” pressuring or anything akin to so-called “brain­washing.” Boiled down, it amounted to advertising.
In America there were some who took fright at Communist adver­tising. Alarmists thought the way to combat it was to hide it. Taboo the subject. Push it out of sight. The fear of Marxist literature, for example, caused the banning of Das Kapital from a number of school and public libraries. Such censorship gave Marx and his writings a stature far beyond their value.
The way to combat such a subject as Communism is not to hide it­or hide from it. The way to combat it is to explode it. Americans have the means at hand-The Bill of Rights. Or call it Democracy, or Republican Government, or the American Way. Armed with a know­ledge of American principles-and a knowledge of the enemy’s-the American fighting man possesses a sword and shield which cannot be wrested from him in combat or in captivity.
As in the interrogation battle, the war for the minds of men is a war of wits. It will not be lost by the serviceman who is equipped with the necessary education.
BLANK PAGE
ADDENDA NO. 5
BIBLIOGRAPHY
The research bibliography used by the Committee con­tains primarily classified material. For the interested reader the following unclassified articles are suggested.
BLANK PAGE
PRISONER OF WAR DOCUMENTS FROM OFFICIAL
SOURCES
Department of the Navy
NM 001-056.06 NMRI,Bethesda, Md. CDR S. V. Thompson (MC)
Evaluation of the effects of certain drugs on the performance of personnel involved in flying. 1952 NR 143-06Q—University of Rochester, G. R. Wendt STUDIES OF MOTION SICKNESS, 30 June 1954
Vestibular functions and psychological and physiological effects of drugs. NR 173-071-Indiana University, Douglas Ellson DETECTION OF DECEPTION, Sept. 1952
Determination of reliable indicators for deception measurements through graphic recordings of physiological and motor responses. NR 173-181-John E. Reid & Associates, Chicago RESEARCH ON SIDE-TONE DELAY
Interrogation devices and procedures. Project to develop novel and easily used methods of causing lying subjects to think they have betrayed themselves. Completed May 1953.
Office of the Surgeon General, Department of the Army
A paper written by the five surviving Medical Corps officers who were repatriated prisoners from Korea. Medical experiences in Communist prisoner of war camps in Korea. Undated. Presented to the American Medical Association 24 June 1954.
Office of the Assistant Secretary of Defense (R & D) Publications
Arntzen, F. I., “Psychological Observations of Prisoners of War.” American Journal of Psychiatry, 104, 1948, 446-447. (German PWs in U. S.) Book,F. and Godin, W., Russian Purge and the Extraction of Confession.
Viking Press, New York, 1950 Bettelheim, Bruno, “Individual and Mass Behavior in Extreme Situa­tions,” Journal of Abnormal and Bocial Psychology; XXXVIII 1943, 417-452.
Brill, N. Q., “Neuropsychiatric Examination of Military Personnel Recovered from Japanese Prison Camps,” Bulletin of the U. S. Army Medical Department.
Jeffrey, Manfred, and Bradford, E. J. G., “Neurosis in Escaped Prisoners of War,” British Journal of Medical Psychology, 20, 1945-46, 422-435 Kirman, B. H. “Mental Disorder in Released Prisoners of War,” Journal
of Mental Science, 92, 1946, 803-813 Newman, P. H. “The Prisoner-of-War Mentality,” British Medical JournalljJanuary 1, 1944, 8ff
Legal
Geneva”Conventions of 12 Aug. 1949 for the Protection of War Victims, DA Pamphlet No. 20-150, Oct. 1950. Vol. 55, 80th Congress, Public Law 810, Laws Relating to the Department
of the Army, 1948.
Manual for Court Martial, 1951.
Title 18, U. S. Code.
Documents Pertaining to Conduct in Event of Capture
War Dept., FM 27-10, 1947, “Rules of Land Warfare”

Department of State
“Chinese Communist Methods of Extracting Confessions for Political Ends” IR-6198, dated 19 Feb 53

Operations Research qUice, Johns Hopkins University
“Study of Combat Stress in Korea,” ORO-T-41 (FEC), dated Dec 52,

Department of the Air Force
“Psychiatric Report,” AF-RDB Report Control Symbol, DD-RDS (A) 48 ARDCD3, Project 7732, “Unclassified Intelligence Methodology” Article: Col. John J. Driscoll, Air Force Magazine, Nov 1952, Subj:
It Could Have Been You.

Far East Command
“Communist Utilization of Prisoners of War,” Hq. USA, Far East, Ad­vanced, OACofS, G-2.

Department of the Air Force
Memorandum: For Secy of Air Force, Commandant U. S. Marine Corps, by General Erskine, Asst. to the Secy of Defense, Subj: Statements Regarding Biological Warfare by Members of USAF and USMC.

RAND Corporation
“Are the Cominform Countries Using Hypnotic Techniques to Elicit Confession in Public Trials?”, Irving L. Janis, RM-161, dated 25 April 49

Miscellaneous
“Technique of Communist ‘Confession’ “, Edward Crankshaw, New York Herald Tribune, dated 10 Dec 52.
“The Policy of the Soviet Union in Regard to Prisoners of War Prior to and at the Start of World War II”, Anthony S. Kawczynski, Undated “New Facts on U. S. Germ Warfare in Korea and China” (Supplement to “People’s China”), 15 Mar 53, (No.6, Issue) (re Schwable and Bley) Selected Articles, 1952-1953, “High Level U. S. Denials of Germ Warfare.”
Department of State
Foreign Service Despatch 2543, Paris, May 19, 1953
American University Field Staff Study

,

Department of the Army
HQ, 500th Militlj.ry Intelligence Group, item 9-204752, Mimeographed instructions in Chinese dated 25 September 1951, titled “PW Policy and the Handling of PWs,” issued by the Political Section, 422d Regt, CCF. 3 pp, no date.

Newspapers
Washington Evening Star, ” ‘Brain Wash’ Possibility,” April 17, 1953 Washington Evening Star, “20 Exposed to Propaganda Reach Valley Forge Hospital,” May 2, 1953 Washington Evening Star, “Returned POW Says He Signed Petition After ‘Brain Washing’,” May 4 (or 5), 1953 The Washington Post, “Freed AF Captain Tells of Forced Red Study,” April 27, 1953 The Washington Post, “All Released POWs To Be Treated Alike,” May 25, 1953 The Washington Post, “Teaching GI’s to Withstand Communist Brain­Washing,” July 11, 1954, by Lloyd Shearer Washington Daily News, “US Fears ‘Confessions’ of POWs,” by Charles Lucey, April 4, 1953 The New York Times, “Some GI Captives May Seem Pro-Red,” April 13, 1953 The New York Times, In The Nation, “Allen W. Dulles Describes ‘War­fare for the Brain’ ” by Arthur Krock, April 16, 1953 The New York Times, “Some Prisoners Report Poor Care,” April 21, 1953 The New York Times, “Ex-Captive Says 17 Took Red Lessons,” April 27, 1953 The New York Times, “Red Lecturers Bored Most P. W.s,” by Mac R. Johnson, May 3, 1953 The New York Times, “Red Torture Cited by Cbinese Bishop,” May 18, 1953 The New York Times, “US Calls on UN to Scan Atrocities by Reds in Korea,” October 29 (or 30), 1953 New York Journal American, On The Line, “Red Torture Techniques,” by Bob Considine, February 25, 1953 New York Journal American, “Tell of Red Propaganda Pressure,” April 20, 1953 New York Mirror, “UN POWs May Get ‘Brain Washings’,” March 31,
1953 New York Mirror, Inside Labor, by Victor Riesel, May 1, 1953 Christian Science Monitor, “Returning GIs Report Indoctrination by
Reds,” April 20, 1953 Christian Science Monitor, “Chinese-Soviet Divergences on Korea Re­solved in Favor of China,” by William R. Frye, April 18, 1953
Christian Science Monitor, “LeGay Tells How Reds Aimed to Confuse PWs,” by CpI. Donald LeGay, May 5,1953
Information and Reference Section, Radio Free Asia (SoUrce: Interna­tional Free Trade Union News, 3-53), “Chinese Observer Says He Saw Reds Torture UN POW’s, Push Indoctrination Program,” March 13, 1953
Sources: Readers Guide to Periodical Literature, May 1945 through 18 December 1953.

America
“Caution at Panmunjon”, Apr 1953, 89: 65 “PWs: A Red Sop?”, May 2, 1953,89: 99 “Pros on Trial”, Aug 29, 1953, 89: 511 “Wind-up of Operation Big Switch”, Sep 19, 1953,89: 585 “Resistance to The Death by PWs”, Oct 3, 1953, 98: 1 “Pro-Communist 23”, Oct 10, 1953, 90: 35 “Conflict Over paws”, Oct 17, 1953, 90: 63 “Operation Persuader Backfires”, Oct 31, 1953, 90: 115 “India Learns About Reds; Neutral Nations Repatriation Commission,”
Nov 1, 1953, 90: 167 “Puzzlement in the Pentagon”, Nov 14, 1953, 90: 102-3 “Atrocities in Korea”, Dec 12, 1953, 90: 283

Business Week
“Nor Prison Bars A Cage”, Nov 14, 1953, p. 157

Christian Century
Djang, R., “What Do They Confess”, Aug 20, 1952, 69: 946-8 Stockwell, F. G., “What Is Brainwashing?”, Jan 28, 1953, 70: 104–5 ”’Back to The Days-of Hostages”, Mar 18, 1953, 70: 308 Foreman, K. J., Jr., “What Is Brainwashing?”, (Reply and Rejoinder),
May 6, 1953,70: 537-8 “Korean Missionary Prisoners Freed”, May 6, 1953, 70: 531 “Prisoners Describe Reality of War”, Aug 12, 1953, 70: 907 “Prisoner of War”, Nov 4, 1953, 70: 1254–6

Colliers
Spellman, F., “How Red China Tortures Protestant and Catholic Mis­sionaries”, May 10, 1952, 129: 15-17 Victoria, Sister Mary, “I Was A Prisoner of The Chinese Reds”, May 9, 1953, 131: 68-73 Fay, B., “It’s Easy To Bluff Americans”, May 16, 1953, 131: 20-3
B. Stapleton and T. D. Harrison, “Why Didn’t Some GIs Turn Commu­nist?” Nov 27, 1953, 132: 25-8

Commonwealth
“Brainwashed”, May 15, 1953,58: 138 Hock, S., “Heresy, Yes: Conspiracy, No”, May 15, 1953, 58: 155-6 “Exchange of Prisoners”, Aug 21, 1953, 58: 479 “Prisoners; Perversion of Loyalties”, Oct 16, 1953, 59: 26-9
“Indian Village; Prisoner Exchange”, Oct 30, 1953, 59: 75
Current History
“Disposition of POWs; Complete Text”, Sept 1953, 25: 181-4

Department of State Bulletin
“Thought Control in The Soviet Union,” Nov 5, 1951, 25: 719-23: Nov 26,
1951, 844-51: Dec 3, 1951, 895-903 “Communist War In POW Camps,” Feb 16, 1953, 28: 273 ‘.’Release of Anti-Communist Prisoners From UN Camps and Corre­
spondence”, June 29, 1953, 28: 905-8 “Communist Charges Regarding Release of Korean Prisoners”; Text of
Letter Sent On June 29, 1953, July 13, 1953, 29: 46-7 “Communist Retention of U. S. POWs”, July 20, 1953, 29: 73-4 Dulles, J. F., “Report of POWs: Witnessing the Return of U. S. POWs
in Korea”, Aug 24, 1953, 29: 235-6
Mayo, C. W.; “Role of Forced Confessions In The Communist Germ Warfare Propaganda Campaign; Statement Oct 26, 1953”, Nov 9, 1953, 29: 641-7

Fortune
“Germ Warfare: The Lie That Won”, Nov 1953, 48: 92

International Conciliation
“Issues Before The 8th General Assembly”, Sep 1953, 493: 6

Life
“Back Mter Eight Years,” Apr 6, 1953, 34: 30-1
“Photos Reveal Some GIs Not On Exchange List,” May 11, 1953,27-31
“Into Eager Arms A Few Come Home,” May 11, 1953,36-40
Brinkley, William, “Valley Forge GIs Tell of ,Brainwashing Ordeal,” May 25, 1953, 108-124 Heiden, K., “Why They Confess,” June 20, 1949, 92–4 Fahy, E. E., “Burial Above Ground,” Sep 8, 1952,33: 126-130 “Big Switch Is Open,” Aug 17, 1953, 35: 22–3 Lee, Kyoo Hyun, “Heroism of General Dean Is Revealed When Most Famous POW Is Set Free,” Sept 14, 1953, 35: 45
“Prisoners of Pardon,” Oct 5, 1953, 35: 26
“POWs of the Reds Do Not Want To Come Home To America; Photographs,” Oct 19, 1953 “We Got Everything You Wanted,” Oct 19, 1953, 35: 45 “Panmunjon Dilemma,” Oct 19, 1953, 35: 45 “Prisoner’s Door To Freedom,” Oct 26, 1953, 35: 44-5 “Prodigal and His Kin,” Nov 2, 1953, 35: 45 “Big Lie; How Reds Got Germ Confessions,” Nov 9, 1953, 35: 51 Martin, D., “Iron Empire of Panmunjon,” Nov 30, 1953, 35: 137-8

Look
Wilson, Richard, “How U. S. l’risoners Broke Under Red ‘Brainwailhing’ “, June 2, 1953, 80-83 .

Nation
“Brainwashing At Valley Forge,”     May 23, 1953, 176: 425-6 Oct 10, 1953, 177: 281
New Republic
“New Dangers Ahead In Korea; Chinese and North Korean Soldiers Under Indian Custody,” Oct 12, 1953, 129: 3 “Dogs, Rats and Now, Men, Germ Warfare Tortures,” Nov 9, 1953, 129: 8
New York Times Magazine
Lawrance, W. H., “Why Do They Confess?,” May 8, 1949, 7 Palmer, C. B., “War For The POW’s Mind,” Sept 13, 1953, 13

Newsweek
“How The Reds Treat American paws and How The UN Cares For
Communist paws,” Dec 17,1951,38: 36-7 “Communist Trial,” May 12, 1952, 39: 106 (Robert A. Vogler) “Snafu At Valley Forge,” May 18, 1953, 44-46 “And Buddy-Buddy; Washed Brains of paws: Can They Be Rewashed?,”
May 4, 1953,41: 35-7 “UN Tells Panmunjon Reds: ‘Time, Patience Running Out’,” May 11,
1953, 37-38 “Without Honor,” July 13, 1953, 42: 30 “What About Reds Among Freed U. S. Prisoners?,” Aug 17, 1953, 42: 21 “Terror And Torture: 5 Prisoners’ Stories,” Aug 17, 1953, 42: 32 “Sick paws,” Aug 17, 1953,42: 58 “Propaganda and Reality; Photographs,” Aug 17, 1953, 42: 30 “Back From Red Death Camps, paws Rediscover Freedom,” Aug 17,
1953,42: 29 “Rats,” Aug 24, 1953, 42: 30 “UN Reds Move Into New Phase,” Sept 21, 1953, 42: 40 “Op. Big Switch,” Sept 21, 1953, 42: 90 “Riots And Repatriation Rules,” Oct 12, 1953, 42: 36 “Lo, The Poor Indian Troops, Berated and Belabored By All,” Oct 19,
1953, 42: 58 “Father Mao Thrown For Loss But POW Came Far From Over,” Oct 26,
1953, 42: 60 “There’s Joy in Crackers Neck,” Nov 2, 1953, 42: 22-3 “Captive Sales Audience,” Nov 2, 1953, 42: 81 “Stalled Truce,” Nov 2, 1953, 42: 42 “Son Of A Dog,” Nov 9, 1953, 42: 38 “Thimayya of India and Korea,” Nov 16, 1953, 42: 40 “Fear In No Crime,” Nov 16, 1953, 42: 47 “It Is Inhuman,” Nov 16, 1953, 62: 32 “Korea Bunkers: Winter Watch,” Nov 23, 1953, 42: 38 “July 4 on January 22,” Nov 30, 1953, 42: 47 “Patriot’s Tears,” Dec 14, 1953, 42: 24
Reader’s Digest
Swift, S. K, “How They Broke Cardinal Mindszenty”, Nov 1949, 55: 1-10

Reporter
“Sent To The Cleaners”, May 26, 1953, 8: 2
“Indians Test”, Oct 27, 1953, 9: 2
“Panmunjon-Out”, Nov 24, 1953,9: 31-2
Saturday Review
Wolfe, H. C., “Story Of A Shock”, May 10, 1952, 35: 14-15

Saturday Evening Post
Gallery, D. V., “We Can Baffle the Brainwashers”, 22 Jan. 1955. Martin, H. H., “They Tried To Make Our Marines Love Stalin”, Aug 25, 1951, 224: 25
White, L., “I Was Stalin’s Prisoner” (R. A. Vogler), Oct 27, 1951, 224: 17-19; Nov 10,1951,29; Nov 3,1951,36-37; Nov 17,1951,29; Nov 24, 1951, 30; Dec 1, 1951, 30.
Bryan, Robert T., Jr., “I Came Back From A Red Death Cell”, Jan 17, 1953, 28: Jl6-118; Jan 24, 1953, 34: 58-63; Jan 31, 1953, 27: 83-:86; Feb 7, 1953, 28: 114-118
“GIs Outshine Eggheads In Resisting Reds”, Oct 31, 1953, 226: 10 “What Price UN Pledge To The Anti-Red paWs?”, Oct 31, 1953, 226: 10 “Asiatic paws Throw The Book At Reds”, Nov 14, 1953, 226: 10 “Red Murder of 6,000 GIs Finally Angers Us”, Nov 28, 1953, 226: 10

Science Digest
Keempffert, W. “Prescription For Our paws”, Dec 1953, 34: 29-30

Science News Letter
“Forced Confessions; Menticide”, July 21, 1951, 60: 43 Vogler, R. A. “Analyze Mind Washing”, May 16, 1953, 310-311 “Not Necessarily Commie”, Oct 11, 1953, 64: 230

Scholastic
“Torture Techniques of Communist Prosecutors In Iron Curtain Coun­tries”, Mar 15, 1950, 56: 22 “Lie Detector: Message Claimed To Have Been Signed By 38 American
Officers Who Are paws”, Sept 27, 1950, 57: 13 “Freedom For A Few,” Apr 29, 1953, 62: 14 “They Refuse To Go Home”, Oct 7, 1953, 63: 17 “They Chose Freedom”, Oct 28, 1953, 63: 12 “Prisoner Talks Stalled”, Nov 4, 1953, 63: 19-20 “Red’s War Crimes Bared; Red Explainers Fail”, Nov 11, 1953, 63: 33 Dean, W. R., “American Hero; Interview”; Nov 18, 1953, 63: 6

Time
“Brainwashing”, Oct. 8, 1951, 58: 39-40 “Brainwashing At Work”, May 26, 1953, 59: 41 “Welcome To Freedom”, Apr 27, 1953,32 “Prisoners: Only 149 American”, May 4, 1953, 33 “The Boys Come Home”, May 11, 1953,30 “Big Switch”, Aug 17, 1953, 62: 20 “Ugly Story”, Aug 24, 1953, 62: 18 “Reactionaries”, Sept 7, 1953, 62: 32 “Blackmail Scheme”, Sept 21, 1953, 62: 33 “Tough Prisoners”, Sept 21, 1953,62: 28-9 “Just A Stone’s Throw; Anti-Communist North Korean and Chinese
Prisoners”, Sept 28, 1952,62: 19 “23 American”, Oct 5, 1953, 62: 33 “Sin of Omission”, Oct 12, 1953, 62: 26 “To A Young Progressive”, Oct 19, 1953, 62: 32 “Frustration At Panmunjon”, Oct 19, 1953, 62: 42 “One Who Won’t Return”, Oct 26, 1953, 62: 27 “Door to Taiwan”, Oct 26, 1953, 62: 32 “Story of Blood”, Nov 2, 1953,62: 27 “Stymied”, Nov 2, 1953, 62: 28 “One Changed His Mind”, Nov 2, 1953, 62: 25-6 “Cowardice In Korea”, Nov 2, 1953, 62: 31 “Germ Warfare: Forged Evidence”, Nov 9, 1953, 62: 22 “2nd Humiliation; The Explainers”, Nov 9, 1953,62: 26 “Go Slow”, Nov 16, 1953, 62: 24 “Towards Disenchantment In India”, Nov 23, 1953,62: 35 “Towards January 22”, Nov 30, 1953, 62: 41 “Soldier’s Soldier”, Dec 7, 1953, 62: 27
”’Other Side”, Dec 14, 1953, 62: 40
U. N. Bulletin
“Prison Breaks Threaten Armistice”, July 1, 1953, 15: 8-10
U. N. World
Domaitre, E., “Why Do They Confess”, Dec 1949, 3: 22-4
U. S. News and World Report
Hayes, John D. “I Saw Red China From Inside”, Mar 13, 1953, 26-32
Dulles, Allan W., “Brain Warfare–Russia’s Secret Weapon”, May 8, 1953, 54-58 (It Explains The “Confessions” of Captured Americans) “Real Story of Returned Prisoners”, May 29, 1953, ’54-63 (Tape Record­
ings of GIs Back From Korea) “Korean War Prisoners-It’ll Be a Long Trail Home”, June 5, 1953,22 “Prisoners Who Broke”, Aug 1, 1953,35: 30 “Report of POWs’ Text of Agreement and Supplementary Agreement”,
Aug 7, 1953, 35: 92-4 “Missing In Action: 8,000 Now Known To Be Dead”, Aug 7, 1953,35: 28 “Truth Vs Promises In Korea”, Aug 14, 1953, 35: 35
“General Clark Reports on Korea; Text of Discussion at The Pentagon, Aug 6, 1953”, Aug 14, 1953, 35: 82-5 Peterson, C. B., “Prisoners Swayed; Didn’t Fall, Interview”, Aug 28, 1953, 35: 28 “Back To The Germ Warfare Hoax, Tortures; U. S. Officers’ Own Story”, Sept 18, 1953, 35: 20-4, Sept 4, 1953, 35: 24 “Korean Puzzle: Americans Who Stay”, Oct 9, 1953, 35: 38-40 Russell, R.B., “For The Prisoners Who Broke, Kindness or Punishment? Letter to Defense Secretary Wilson With Statement by Mr. Wilson”, Oct 16, 1953, 35: 51-3 “Articles From The Macon (Ga.) Telegraph: Fliers Ready to Die Rather Than Confess Germ Warfare”, Oct 16, 1953, 35 “Big Flop At Panmunjon”, Oct 30, 1953, 35: 30-2 Mayo, G. W., “Destroying American Minds; Russians Made It a Science; Text of Report To Political Committee, UN”, Nov 6, 1953,35: 97-101 Dickenson, S. S. “Why Some GIs Stay With Reds: Interview”, Nov 13, 1953, 35: 33 “Where are 944 Missing GIs?”, Dec 18, 1953, 35: 77-8 Lawrence, D., “To The Unreturned Prisoners”, 35: 100

Vital Speeches
Lew, D. H. “Brainwashing In Stalinist China”, June 1, 1952, 18: 497-501
Douglas,P. E., “Korean POW Issue”, July 1, 1953, 19: 568-70
Sokolzky, O. X. “Where Are Our Sons?”, Sept 1, 1953, 19: 678-9
Sheen, Fulton, “Changed Concept of Man”, Nov 15, 1953, 20: 83-5
BLANK PAGE
ADDENDA NO. 6 CHARTS NO.1 POW BREAKDOWN NO.2 BREAKDOWN BY SERVICE NO. 3 HOW POW’S WERE PROCESSED NO. 4 HOW SUSPECTS WERE INVESTIGATED
77
BLANK PAGE
OUT OF 1.6 MILLION IN KOREAN CONFLICT
20 JULY 1955 7,190 WERE CAPTURED NO I
AN ADDITIONAL 470 WERE MISSING
• 21 Refused Repatriation
• II Retained by the Communists Against Their Will
Prepared’b,y Defens~
Advisory Committee (Subsequently Released) ~ on Prisone·rs ot War
BLANK PAGE
oco
7,190 CAPTURED· KOREA

20 JULY 1955
t• tttttt,tt; NO 2
ARMY
AIR fORCE ,
MARINE CORPS ;
NAVY

, • 10′
Prepared by Defense ——-t~————~
Advisory Committee
on Prisoners o:t War

HOW THE 4,428 POW’s WERE PROCESSED
20 JULY 1955
NO 3
JOINT SERVICE ACTION SCREENING
ARMY 3,973 __••••
426-,,+
NAVY
MARINE CORPS
AIR
FORCE
~epared By Defense Advisory Committee ~ on Prisoners of \~ar
. 31 s+ 565 REQUIRED FURTHER 200 INVESTIGATION
52~
224
87-t
BIG &
LITTLES wlTe H
INTERROGATION

to
co~ HOW THE 565 WERE INVESTIGATED 20 JULY 1955
bj\)
…. STATUS NO 4
EoAs of20Ju Iy 1955
..
r:J”<l
Separated
SO
..ARMY G2 Convicted
0616 !
<Zl(Court t.!orl;oll
426
S’E~IAL COUNCIL 179
~! ‘ending 112’
If
……
§e. NAVY
•~t::fo o
0
.t::f2B
P~
‘1:
1″
!’ :fq MARINES
Reprimand
li~
” ….CORPS
.~ Restricted”0 52 Assignment
…..z~z ~I ‘” !! AIR
~;;
~ FORCESeparated”s-Resigned ~} 10
~ f0 87
Bl *(112″”rIlY) stili undergoing intensive..
li Prepared by !leteose investigation. No estilllate of the MAXIMUMAdvisozy COlIIlIlittee nUlIlber whose behavior warrant! •• . 192 POSSIBLEon Prisoners of War punishment Is possible. Possibly less
~~ MISBEHAVIOR
than. half will ultimately receive
sOllie f~r-of punishment. CASES